End the manda­tory vic­tim sur­charge

Law is too harsh, Vin­cent Larochelle and An­drew Stobo Sni­der­man say.

Ottawa Citizen - - OPINION -

There is a long tra­di­tion of leg­is­la­tors leav­ing hard ques­tions to judges. When con­ve­nient, politi­cians fac­ing a prob­lem can dodge or de­lay. By con­trast, when a judge is thrown a hot potato, hands must burn — and, hope­fully, jus­tice gets done.

Prime Min­is­ter Justin Trudeau’s gov­ern­ment stalled for 18 months af­ter in­tro­duc­ing a draft law to abol­ish the re­quire­ment of a so-called “vic­tim fine sur­charge” on those who com­mit any kind of crim­i­nal of­fence.

The manda­tory sur­charge im­poses min­i­mum fines on of­fend­ers, at $100 or $200 per of­fence, re­gard­less of the se­ri­ous­ness of the crime, whether the of­fender can af­ford the fine, or even whether or not there is a vic­tim.

Each fine may not seem like much, un­less you are des­ti­tute, in which case a num­ber of petty of­fences can in­def­i­nitely sad­dle you with the crush­ing bur­den of debt and the stigma of crim­i­nal­ity.

In 2013, Stephen Harper’s Con­ser­va­tives made the fine manda­tory on all of­fend­ers, in­di­gent or oth­er­wise, be­cause ap­par­ently be­ing tough on crime re­quires in­dis­crim­i­nate pun­ish­ment, and so be it if the most vul­ner­a­ble bear the great­est bur­den. One judge in On­tario called the manda­tory sur­charge “a tax on bro­ken souls.”

In the Yukon, where ad­min­is­tra­tion of jus­tice of­fences are five times higher per capita than the Cana­dian av­er­age, al­co­holics are rack­ing up thou­sands of dol­lars of fines for vi­o­lat­ing pa­role or bail con­di­tions that re­quire so­bri­ety and avoid­ing bars.

The cy­cle is pre­dictable, com­mon, and, yes, vic­tim­iz­ing.

It is also a great waste of time and re­sources, in the Yukon as across Canada, be­cause our jus­tice sys­tem spends so much en­ergy chas­ing af­ter peo­ple who will never be able to pay.

When the vic­tim sur­charge was cre­ated in 1989, judges had dis­cre­tion on whether to im­pose it, and the laud­able goal was fundrais­ing for vic­tim ser­vices. Which is great, un­less at­tempts to en­force the fine on peo­ple who can’t af­ford it cost even more.

Here as al­ways, blind vengeance makes bad pol­icy.

It is trite and true to say that politi­cians of all stripes his­tor­i­cally have a hard time pro­duc­ing ra­tio­nal crim­i­nal jus­tice leg­is­la­tion. It is all too easy for blowhards to cam­paign on max­i­mum pun­ish­ment for the most guilty. Judges face a dif­fer­ent re­al­ity in the day-to-day oper­a­tion of the sys­tem, which is clogged by of­fend­ers who are not so much evil as poor, des­per­ate and ad­dicted.

In­flex­i­ble, harsh laws make no sense for these peo­ple.

To­day, the Supreme Court will hear ar­gu­ments on whether the manda­tory sur­charge is con­sti­tu­tional. We will be among those ar­gu­ing the court should strike it down.

Fair­ness de­mands pun­ish­ment that is pro­por­tional to the cir­cum­stances of each case.

In­ter­est­ingly, the court will not hear from the at­tor­ney gen­eral of Canada, who with­drew a planned in­ter­ven­tion in the case.

Pre­sum­ably, this has some­thing to do with Min­is­ter of Jus­tice Jody Wil­sonRay­bould’s com­ment in 2016: “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.”

Lawyers may be ex­perts at polishing turds, but clearly the Lib­eral gov­ern­ment knows how much this law stinks. In this case, rightly, the at­tor­ney gen­eral’s si­lence is the op­po­site of com­plic­ity.

It is ev­i­dent that Wil­sonRay­bould cares deeply about the on­go­ing in­jus­tice of the manda­tory sur­charge, and wants the law changed. In Oc­to­ber 2016, she in­tro­duced a para­graph-long statute, C-28, to do just that.

But that draft bill just col­lected dust and went nowhere. Then, late last month, she in­tro­duced a new law propos­ing broad crim­i­nal jus­tice re­form, C-75, which in­cludes pro­vi­sions to deal with the per­ni­cious ef­fects of the manda­tory sur­charge.

The new bill is a sig­nif­i­cant though in­com­plete move to­ward the nec­es­sary sys­temic changes this gov­ern­ment has promised for our crim­i­nal jus­tice sys­tem. We hope the gov­ern­ment shows the req­ui­site ur­gency to get it passed be­fore the next elec­tion.

Leg­isla­tive time is rel­a­tively short, and the sur­charge con­tin­ues to wreak sys­temic havoc in the lives and com­mu­ni­ties of the most vul­ner­a­ble.

Per­haps the Supreme Court will strike down this un­just law. If the court doesn’t — and it may not, be­cause not ev­ery un­fair­ness is un­con­sti­tu­tional — we will need leg­is­la­tors to make things right. Vin­cent Larochelle is a crim­i­nal de­fence and ap­pel­late lawyer in the Yukon and for­mer law clerk at the Supreme Court of Canada. An­drew Stobo Sni­der­man is a vis­it­ing re­searcher at the Univer­sity of Ot­tawa’s Hu­man Rights Re­search and Ed­u­ca­tion Cen­tre, and for­mer pol­icy ad­viser to two Lib­eral cab­i­net min­is­ters.

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