SCC’s unusual use of ‘cruel and unusual’
On Friday morning the Supreme Court, in a 7-2 majority decision written by newest puisne justice Sheilah Martin, wiped out the mandatory “victim surcharge” in the Criminal Code on the grounds that it is unconstitutionally cruel and unusual punishment. It’s a tough liberal ruling that erases part of the Conservative law-and-order legacy in the Code. Victim surcharges go back to the 1980s, but it was the Harper government that took away all judicial discretion relating to them. Since 2013 a judge finding someone guilty under the Code or the Controlled Drugs and Substances Act has been required to impose a $100 penalty for every count in the less serious “summary conviction” category and $200 for every “indictable offence” count.
We laymen naturally think of the rule against “cruel and unusual punishment” (preserved in section 12 of our Charter of Rights) in its historical context: it was devised to prevent law enforcement, in whatever guise, from running amok and creating new forms of exemplary torture or public humiliation. The word “unusual” was important. No one objected to serious crimes being punished in ways that were cruel but traditional; even traitors were thought to have a natural right to foreseeable and limited punishment, rather than artisanal innovation by a vengeful authority.
It is natural to look at the punishment being condemned here and wonder if making someone pay a hundred bucks can really be considered “cruel and unusual” in the way that torture would be. The Court was definitely guided by liberal concern for the differing effects of the law on various downtrodden groups. The criminals whose appeals were combined for the purposes of Supreme Court analysis included poor and afflicted people convicted of assault, robbery, and uttering threats. (At least one was hit with the surcharge only because he was found guilty of violating probation.)
The libertarian part of me does not like any form of mandatory sentencing very much, and likes it still less when a punishment is dressed up as some sort of creepy consolation or reward for crime victims, even though the impugned surcharges just went to the Receiver-General like any other fine. In a way, this business is odious liberal maternalism in the Conservative mirror. Retribution has a place in the justice system, and if we want to make things hard for criminals, we shouldn’t disguise it as therapy or holiness. (The federal government’s lawyers, in fact, did try to argue that the surcharge was not “punishment” at all. That didn’t go well.)
I was more impressed than I expected to be by Justice Martin’s ruling. Section12-based attacks on the mandatory victim surcharge did not prosper in the lower appellate courts. The case law is almost unanimous in observing that the standard for “cruel and unusual punishment” is high.
But the mandatory “victim surcharge” was a historically new wrinkle cooked up by law-and-order Conservatives amid a fashion for victims’ rights. It is thus, right off the bat, natural and correct to interrogate the surcharge for “unusualness.” We want the Supreme Court to be prepared to act when something new in criminal justice is invented.
And since I have pointed out that the appellants in this case have done some bad things — I am even willing to suppose that they are all quite horrible personally — I will also point out the “sur” in the word “surcharge”. These indigent crumb-bums did suffer the ordinary penalties of the law for their crimes and misdealings. The “surcharge” perched atop the regular sentence, and required separate evaluation.
Nobody who has ever paid a cable or phone bill likes the sound of the word “surcharge.” Martin’s ruling does not point that out explicitly, but her enumeration of the features of the victim surcharge
IF WE WANT TO MAKE THINGS HARD FOR CRIMINALS, WE SHOULDN’T DISGUISE IT
may convince you that it had the same sneaky, expansionary character that we all dislike in any hidden business fee. The surcharge was a fixed amount per count of the conviction. Murder one person, the charge is $200: commit five counts of mischief, it is $500. These are amounts that some people — the mentally ill, the profoundly disabled, the homeless — have no realistic prospect of paying through their own efforts, or working off.
Remember, the judge was not allowed to waive the surcharge, even if he accepted that it could never be paid. What would happen in practice is that an impecunious convict who had not settled up would be required to appear in court periodically, fill out forms, and get an extension to his deadline. People who can’t raise a few hundred bucks are not likely to be good at handling a bureaucratic burden like this, but they were not eligible for state-funded assistance from counsel, for all the good it might have done.
These were guilty people who had in all other respects discharged what we call “their debt to society.” But the surcharge had them living under permanent threat of arrest and detention, with a dollop of occasional humiliation thrown in. If you have been even slightly poor, I believe the adjective “cruel” will appear spontaneously in your mind, as if whispered in your ear, while you study Justice Martin’s description of the effects of the discarded law.