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.
By: Arlène Gaudreault, Heidi Illingworth, Steve Sullivan & Irvin Waller, Ph.D.
In a country as generous and fortunate Canada, help for people harmed by crime and violence is important enough that governments should fund the services victims need, not leave it to judges to order a surcharge or depend on offenders to pay their fines.
For many of us who work in the fields of victim advocacy, service provision and academic research, Susan Herman is an inspiring woman. She is the author of Parallel Justice for Victims of Crime, and former Executive Director of the National Center for Victims of Crime in Washington, D.C. Recently, she gave a speech in California where she began with the assertion that “real justice is a much broader concept than simply securing rights within the criminal justice system; it also includes improving and rebuilding the lives of victims in the aftermath of crime.”
We cannot agree more. In Canada, we are currently in the midst of historic discussions about the enactment of a federal Victims Bill of Rights. While this is an important step towards ensuring victims and survivors of crime and violence are provided legal protections, we wonder whether a federal Victims Bill of Rights will result in a national commitment to securing real justice for victims, many of whom do not even report the crime to the police. A critical shift in social and legal culture is necessary in order to meet the needs of victims as they, not politicians or bureaucrats, define them. Historically, for every reported crime, society has focused on trying to apprehend, prosecute, sanction and eventually reintegrate offenders. There has been little emphasis on the person who has been traumatized, their needs, their healing or their recovery.
Following Herman’s Parallel Justice framework, there must be a separate set of responses for victims of the crime. “Parallel Justice responses seek to restore victims’ safety, help them recover from the trauma of the crime, and regain a sense of control over their lives. These responses would not depend on whether the offender is ever identified or convicted. In all cases, the harm experienced by victims of crime would be acknowledged and addressed separately and apart from the criminal justice process. While victims’ legal rights within the criminal justice process should be enforced, society’s obligation to provide justice to victims extends beyond the criminal justice process. Criminal justice agencies—police, prosecutors, courts, and corrections—are all challenged to respond more effectively to victims, and make victims’ safety and the prevention of repeat victimization a higher priority. Every social service and healthcare agency can also reorient its core business practices to play a greater role in helping victims rebuild their lives. In fact, every sector of our civil society—businesses, employers, schools, faith-based institutions, and neighbours—can make important contributions to Parallel Justice.”
Victims and survivors face so many barriers in rebuilding their lives. They have many needs that are currently unmet by the traditional justice system, social services and health care system. The financial impact of crime and violence on victims is massive. Many women who are living with abuse cannot afford to escape the violence. For economic reasons, they may be forced to remain in homes with violent partners while their children witness their abuse or suffer alongside them. Women’s shelters often suffer from inadequate funding to meet the demand in their communities and turn women and their children away everyday. There is a lack of safe, affordable community housing for women and children fleeing violence and not enough free family law services for abused women.
In the case of homicide, grandparents and other family members may be required to raise grandchildren left behind, resulting in a massive financial toll, not to mention legal costs associated with custody and access battles. The programs offered to help victims with the financial impacts of crime vary immensely from province to province (some do not offer any financial assistance at all), are not accessible to all victims and many programs suffer from a lack of timely administration of claims. Victims receive a pittance compared to the actual cost of the crime, if they receive an award at all. Victims of fraud and financial crimes are not eligible to recoup their losses from existing compensation programs for victims, as they are designed to respond to violent crime only, leaving little chance for victims to ever recover what was maliciously stolen from them. The courts rarely impose restitution orders upon offenders in Canada and when they do, victims are left to try to collect restitution on their own time and at their own expense.
The needs of sexual assault victims are largely unmet by the police and courts, who do not often offer adequate support services to victims in the aftermath of being profoundly violated. The very justice system they turn to is often a source of severe revictimization. Less than 10% of sexual assaults are reported to the police in Canada and a minute amount of these cases result in convictions. Shamefully, there are only a handful of programs funded across Canada to help male survivors of sexual abuse cope with their victimization.
Victims who require mental health supports to deal with the trauma they have suffered often have to seek help at their own expense. They may qualify for a few initial sessions through their provincial or territorial compensation program if they meet artificial deadlines and are approved as worthy victims, but most cannot access free professional counselling over the long-term or as needed when they are triggered by various life events such as anniversaries, holidays and media coverage.
Canadian governments at all levels significantly underfund the prevention of crime and violence and tend to concentrate spending on law enforcement and incarceration, yet the needs of victims are rarely met in a courtroom setting. In fact, involvement in court processes and trials often causes secondary victimization. The outdated criminal justice paradigm is failing, racially biased, and exorbitantly expensive. It relies too heavily on incarceration which does not spare victims from the loss and pain of preventable violence. Evidence shows that smart investments in young men and parenting in “problem places” will produce healthy citizens less prone to violence. Stopping violence before it happens on the streets and against women is key and it costs much less than our traditional criminal justice system responses.
For the minority of victims whose cases enter the formal criminal justice system, they have no substantial role other than that of a witness. When their personal interests and safety are affected, victims of sexual assault should have the right to legal representation to protect and defend their personal medical records from third parties, just as the prosecutor pursues the interests of the state and defence counsel pursues the interests of the accused. Will a right to counsel, which would make a significant positive difference for sexual assault complainants in our courtrooms, be included in the forthcoming Victims Bill of Rights?
Traumatic events can fundamentally change the victim’s way of life and their psychological outlook. Healing requires a victim-centred approach that allows victims to regain a feeling of control over their lives. This means our governments should provide access to necessary long-term financial, psychological, social, restorative and practical supports that victims require to rebuild their lives in the wake of the trauma they have endured.
A federal Victims Bill of Rights is not the only answer to the needs of victims even if it is an initiative to improve the lives of victims. A Bill of Rights responds only to a minority of victims: those who report the crime and those, ultimately, for whom there will be proceedings before the courts. The most important “right” we can provide to victims is the right to services. Victims who don’t report crimes may still need support services. A Victims Bill of Rights will be of little significance without an implementation and monitoring mechanism so that we can measure its results.
The reality is that many victim-serving programs across Canada lack sufficient resources and overall funding. In fact, funding totals for victim services are paltry in comparison to funding directed toward police, courts, and corrections spending, which continues to rise. Victims who live in remote areas of Canada have difficulty accessing services, but this short-fall could be addressed with adequate funding to implement services and programs in under-served areas.
There has been much debate about judges in Canada are fusing to impose the Victim Surcharge upon convicted offenders, even though it is now mandatory. This means provincial funds for victim services remain at low levels and existing programs cannot grow. Victims and survivors of crime and violence in Canada deserve better. Securing real justice means meeting the victim’s complex needs independently from judges ordering surcharges or offenders paying their fines. If governments, at all levels and all stripes, really support victims, show us the money!
Arlène Gaudreault holds a Masters in Criminology from the University of Montreal. From 1993-2013 she taught victimology at the School of Criminology and the Faculty of Continuing Education at the University of Montreal. Coordinator of the first centre to assist victims of crime in Quebec, she was instrumental in developing several programs to improve the plight of victims of crime. She has been the President of the Victims Advocacy – Quebec Association (AQPV) since 1988. In 1997, Arlène received the Prix de la Justice Ministry of Justice of Quebec for her contribution to the development of initiatives for victims and promotion of their rights.
Heidi Illingworth is the full-time Executive Director of the Canadian Resource Centre for Victims of Crime (CRCVC) and has been employed at the Centre since 1999. She was involved with curriculum development for the Victimology Graduate Certificate Program at Algonquin College and is currently a Part-Time Professor in the program. Heidi has developed training materials for victim services staff and volunteers in Ontario and sits on the Ontario Region Victim Advisory Committee (VAC) to the Correctional Service of Canada (CSC) and to the Parole Board of Canada (PBC), Ontario-Nunavut Region. In 2012, Heidi was privileged to receive the Queen Elizabeth II Diamond Jubilee Medal in honour of her work for victims of crime.
Steve Sullivan is the Executive Director of Ottawa Victim Services and a Part-Time Professor at Algonquin College in the Victimology Graduate Certificate Program. He has been advocating for victims for almost 20 years, having served as the former President of the Canadian Resource Centre for Victims of Crime and as the first Federal Ombudsman for Victims of Crime. He has testified before numerous Parliamentary Committees on victims’ rights, justice reform and public safety issues and has conducted training for provincial and federal victim services.
Irvin Waller is a full professor at the University of Ottawa and President of the International Organization for Victim Assistance. He is recognized internationally, particularly for his contributions to the US crime victim rights movement and the United Nations Magna Carta for justice for victims approved by the UN General Assembly. His recent books, Rights for Victims of Crime and Smarter Crime Control, use science to provide legislators with an agenda for action to stop violence and assist victims.