A law that prompted a rare rebellion among judges has been declared cruel and unusual punishment, and therefore unconstitutional, by the Supreme Court of Canada.
The mandatory “victim surcharge” was a centrepiece of the former Conservative government’s crime agenda. Until October, 2013, judges had the discretion to waive the automatic financial penalty, which was created in the late 1980s. The Conservatives said the mandatory penalty – $100 for each minor crime, and $200 for each major one – would promote accountability among offenders and help pay for victim services.
But the Supreme Court said in a ruling released on Friday there was no accountability in trying to squeeze money from the very poor, the homeless and the addicted. It cited the case of Shaun Michael, an Inuit man living in Ottawa on $250 a month who faced a surcharge of $900 for minor assaults, mischief and breaches of probation. “It is what most Canadians would call an abhorrent and intolerable punishment,” Justice Sheilah Martin wrote for a 7-2 majority.
The federal prosecution service had pointed to judges who found creative ways around it – ordering surcharges of as little as 30 cents instead of $100 – as evidence the surcharge was fair and constitutional. (The law allowed judges to impose a fine as an alternative to the mandatory amount, triggering a 30-per-cent surcharge. A $1 fine brought a 30-cent surcharge.)
Justice Martin took a dim view of that defence, and by extension the judicial rebellion, saying it was more principled for judges to declare the law unconstitutional or impose it in all cases as Parliament intended.
Retired Ontario Court judge Colin Westman, who dubbed the charge “a tax on broken souls” in a 2013 interview with The Globe and Mail while still a sitting judge, was ecstatic after the ruling.
“Churchill apparently said you hear common sense so seldom you think it’s brilliance. I’m thrilled they did that,” he said by telephone from his home in Kitchener, Ont.
He had ordered fines of $1 in some cases, producing a surcharge of 30 cents.
“It sort of validates what we started," he said. "What I did was cavalier but I always figured, ‘My God, if I can’t speak up for these kinds of things, God help us.”
Other judges in several provinces granted 25, 50 or even 99 years to pay. One judge declared the surcharge unconstitutional without giving the Crown a chance to respond. (A higher court overturned that ruling.)
The effect of the ruling is to strike down the victim surcharge itself, not just the mandatory part. That leaves the future of the surcharge to the Liberal government, which has proposed a law giving judges back their discretion over it that is awaiting passage by the Senate.
“We are reviewing the decision and will take the necessary time to carefully consider its potential impacts on [the proposed law]," a spokesman for Justice Minister Jody Wilson-Raybould said.
The Supreme Court ruling is yet another blow against the Conservative crime agenda. In previous cases, the court declared mandatory minimum penalties for guns and drug possession to be cruel and unusual punishment. It would not let the government limit credit for pretrial custody to one day for each day served. Taken together, the court’s crime rulings constitute clear boundaries for future governments tempted to push punishment at the expense of other sentencing goals.
Peter MacKay, who was the Conservative justice minister when the surcharge became mandatory, said in an interview his government created the policy because of judges’ “cavalier waiving” of the surcharge.
“I read the decision [of the Supreme Court]. ‘Grossly disproportionate.’ ‘Outrage to decency.’ ‘Abhorrent.’ The public, at least in my experience in law and politics, were not outraged that the offender might have to make a nominal contribution to the damage suffered by the victim,” said Mr. MacKay, now a lawyer based in Toronto.
The Supreme Court did not appear to like the mandatory surcharge law any better than the rebel judges did. It said the law elevated the accountability of offenders over the No. 1 principle of sentencing – proportionality – and over other goals, such as rehabilitation and reducing the punishment of Indigenous offenders.
Several cases from Ontario and Quebec were before the court. Trial judges had been mixed in their responses, but the appeal courts of the two provinces had upheld the surcharge, largely because offenders could ask for extra time to pay, and because Canadian law does not allow imprisonment of people who cannot afford to pay fines.
But Justice Martin, a former law dean from the University of Calgary, who was Prime Minister Justin Trudeau’s second appointee to the court, looked at the penalty from the impoverished offender’s point of view.
For those who cannot afford to pay, she said, the penalty may amount to a lifetime sentence of being chased by collection agencies and denied the chance to apply for pardons as long as the payment is outstanding.
Some may not be able to apply for extensions because of disability or other issues, Justice Martin said. She also said the threat of jail does hang over their heads. For instance, in Ontario, when the surcharge is levied, offenders receive a government form “threatening the offender with imprisonment if he or she fails to pay the amount."