At the end of July, an Ottawa judge struck down the government’s mandatory victim surcharge as unconstitutional. Andrew Seymour of the Ottawa Citizen reported…In a carefully reasoned, 31-page decision, Ontario Court Justice David Paciocco found that a reasonable person who was properly informed would find $900 in mandatory victim surcharges for addicted, impoverished and troubled Inuit offender Shaun Michael so grossly disproportionate that it would outrage the standards of decency.
Paciocco found the surcharge amounted to cruel and unusual punishment.
The 26-year-old Michael was facing the fines after a series of what the judge described as “nuisance” crimes committed while he was extremely intoxicated. Michael stole a bottle of rye from a downtown LCBO and then kicked a loss prevention officer and police officer, confronted a snowplow operator and broke a shelter window, and lashed out at police after being stopped wandering down the middle of a busy street.
Each of the nine offences Michael pleaded guilty to carried separate $100 surcharges.
Michael, who grew up in group homes and on the street, survives below the poverty line on a street allowance of $250 a month. Each of the $100 victim surcharges amounted to 40 per cent of his monthly income and the total was an “otherworldly sum” that Michael was never likely to repay, the judge said.
“This is a crushing amount for him, beyond his foreseeable means. It is a sum that, in relative hardship, is many multiples of what a moneyed offender would have to pay,” Paciocco wrote. “Simply put, Mr. Michael is being treated more harshly because of his poverty than someone who is wealthy.”
Paciocco’s decision is the latest blow for the mandatory surcharge, which has been the target of ire for defence lawyers and some judges since the amount was doubled and made mandatory in October of 2013. Michael was the first offender in Ottawa to formally argue the constitutionality of the surcharge, although more legal challenges are expected this fall. Several other judges have declared the provision unconstitutional, although several of those decisions were made without hearing proper legal arguments.
The government made the surcharge mandatory after complaints by victims groups that judges weren’t imposing the measure properly. Judges routinely waived the fee when offenders were sentenced to jail or without inquiring about their ability to pay the surcharge, which funds victim services.
In his decision, Paciocco — who has authored books on criminal law and is considered one of Canada’s foremost experts on evidence — dismissed Crown arguments that the surcharge wasn’t a punishment so therefore couldn’t be found to be cruel and unusual.
“All extrinsic sources confirm that the victim surcharge was enacted to make offenders pay for their crimes,” wrote Paciocco. The name of the law, the Increasing Offenders Accountability to Victims Act, and statements made by the justice minister and other politicians are “situating this legislation among tough-on-crime initiatives” designed to deter offenders and hold them responsible for their actions.
An offender’s ability to apply for an extension of time to pay the surcharge doesn’t reduce its disproportionate impact, Paciocco found.
The judge also took aim at the government’s decision to remove the judicial discretion that once allowed judges to waive the surcharge in cases where it would cause undue hardship.
“Making the victim surcharge mandatory is one solution to the failure of judges to impose it where it should be imposed. Another, one that keeps the baby after the bathwater has been thrown out, is for the Crown to appeal or seek to review decisions where the victim surcharge is inappropriately waived,” Paciocco wrote.
Michael’s lawyer, Stuart Konyer, called the decision “a victory for the rights of impoverished accused persons. “Given the number of different courts across the country which have now declared the victim surcharge amendments to be unconstitutional, it is time for the federal government to rewrite this law in a manner that complies with Charter standards,” said Konyer, who is also the president of the Defence Counsel Association of Ottawa.
The CRCVC is left wondering what the government will do to address proper funding for victim services in Canada. Is legislation the best response given the number of courts who have now found that a mandatory fine is unreasonable for many offenders who live in poverty? Perhaps it is time for all three levels of government in Canada to substantially fund support services for victims from their annual justice and corrections budgets instead of relying on measures such as fines that few can pay. Don’t the people who have been harmed by crime and violence deserve this much? We dedicate billions in budgets annually in response to those who commit crime whether it is via policing, criminal trials or prison budgets. It is time to stop funding victim serving agencies on scraps or leftovers and ensure that persons harmed by crime have access to stable, consistent and properly-funded support.