Liberals table bill to give judges more discretion with surcharges

Justice Minister Jody Wilson-Raybould put forward a new bill Friday that is poised to reverse some elements of one of the previous Conservative government’s toughon-crime laws that some judges have openly refused to impose on offenders and has been repeatedly criticized as unconstitutional.

The mandatory victim surcharge, part of the Increasing Offenders Accountability to Victims Act, or Bill C-37, which went into effect three years ago, set a mandatory surcharge of $100 or $200 per offence, depending on the severity, to fund programs to support victims of crime and to hold offenders accountable.

The surcharges are mandatory in cases when the sentencing judge does not impose a fine. In cases where a fine is included as a sentence, the surcharge would be 30 per cent of it.

But Wilson-Raybould introduced proposed changes that would give judges greater discretion in imposing the surcharge, paving the way for them to waive it altogether if the court finds it will cause “undue hardship” to offenders.

The controversial legislation has resulted in several constitutional challenges, underlining the inability of the unemployed, the homeless and the mentally ill to hand over money they simply don’t have.

In some cases, judges have reduced the surcharge to a few dollars for impoverished offenders.

Several cases involving findings regarding the constitutionality of the victim surcharge are still waiting to be heard by Ontario’s Court of Appeal.

Before the Conservative government amended the legislation in 2013, judges previously had the power to waive the surcharge when they felt it would cause financial hardship.

“We can trust our judges to do the right thing,” Anne LondonWeinstein, president of the Defence Counsel Association of Ottawa, told The Canadian Press before the announcement. “They were doing it for years.” Conservative justice critic Rob Nicholson, who introduced Bill C-37 when he was justice minister, said Friday he believes the new bill will turn the focus away from supporting victims of crime.

“It doesn’t surprise me that the Liberals are trying to water these things down, but that’s their take on these,” said Nicholson.

“You’re sending a message out to (victims) that they don’t have the priority that the previous government had. We’ll see how this goes. I hope they stop. I hope they don’t continue to repeal legislation that we believe was consistent with standing up for victims.”

The victim surcharge was first introduced in 1989 and has been a challenging balancing act for years between advocating for victims’ rights and ensuring fair treatment for marginalized offenders.

Wilson-Raybould told reporters after the announcement that offenders who can pay the surcharge will continue to do so, and the funds will still be directed to victim support services in the provinces and territories.

“Imposing a victim-fine surcharge on somebody that is a marginalized person that has an absolute inability to pay because of their financial circumstances, whether that be homelessness or not being employed, does not bolster a fair justice system, and we want to give the discretion to the judges,” she said.

She also said the government will monitor the discretion used in the courts going forward.

NDP justice critic Murray Rankin called the Liberals’ proposed amendments to the act a “good start,” but said he was disappointed that judges would not be given absolute discretion in all cases.

“That’s what the judges have asked for, and I think there’s no reason why they shouldn’t take the responsibility that they’re paid to address, which is simply that on a case-by-case basis, should there be a victim surcharge?” said Rankin.