Scrap mandatory victim surcharge

When the Trudeau government was elected in the fall of 2015, doing away with the most egregious measures in the former Conservative government’s “tough on crime” agenda should have been one of its top priorities.

But sadly, that wasn’t the case. The Liberals left the problems they had railed against in opposition for someone else to clean up.

One example is mandatory minimum sentences, which were greatly expanded by the Harper government. The government hasn’t acted in that area, so it’s been left to courts across Canada to chip away at such sentences, which undercut the power of judges to tailor punishments to individual offenders and their crimes.

Now the Supreme Court of Canada will decide on yet another element of the Conservatives’ misguided legal measures: the mandatory victim surcharge.

The question put to the court this past week is whether it is constitutional to make a poor person convicted of a crime pay a surcharge, which goes towards funding general services for victims of crime.

It shouldn’t be up to the Supreme Court to decide whether this law is unconstitutional. The government already has plenty of evidence that it is unjust.

The surcharge does not hold people accountable, as the Harper government claimed. Rather, when applied in all cases it simply piles fines on the backs of the poor, homeless, addicted and marginalized who have no ability to pay.

That’s why the Liberal government introduced legislation in the fall of 2016 that would have given judges discretion to decide whether or not to impose the surcharge.

Imposing a victim surcharge on marginalized people who aren’t able to pay “does not bolster a fair justice system,” Justice Minister Jody Wilson-Raybould said at the time.

She was right, of course. Too bad the government didn’t think it was a high enough priority to make sure the bill became law. Instead, it languished in Parliament.

As a result, it has been the courts that have started to right the wrongs, as they have done with mandatory minimum sentences.

Some judges have been doing what they can to ease the impact of the surcharge on the poorest offenders. In some cases they have given offenders decades to pay. Other offenders have been handed fines as low as $1, making the surcharge just 30 cents, instead of the mandatory $100 for each minor offence that doesn’t come with a fine.

The case of Gerry Williams, a Toronto man who was homeless and alcoholic for nine years, shows how absurd things can get if this law is applied as the Conservative government intended.

During his years on the street, Williams amassed an astonishing $65,000 in fines for non-criminal offences such as jaywalking, carrying open bottles of liquor, loitering and littering.

At the root of all those petty offences is homelessness and addiction. Neither is a crime in this country.

In 2014, a year after the mandatory victim surcharge became law, Ontario Court Justice David Paciocco found it to be unconstitutional. It amounts to cruel and unusual punishment, he ruled.

“The marginalization and pointless harassment of the impoverished disabled with mandatory surcharge levies is a cost that is too heavy to bear in order to remedy distrust of judicial discretion,” he said in another case two years later.

The Trudeau government has known for years that mandatory surcharges are unjust, but it didn’t act firmly enough to deal with it. After letting its first effort to deal with the issue go nowhere, it introduced legislation again last month. But that’s too late since the matter is now before the Supreme Court.

Hopefully the court will strike down this unjust law. If it doesn’t, the government should waste no more time in doing the right thing.