‘Tough on crime’ fines often fail to serve justice
Is a mandatory victim surcharge “cruel and unusual punishment?” And might we tolerate it anyhow?
These are weighty questions before the Ontario Court of Appeal.
The mandatory victim surcharge was a key element of the Harper government’s “tough on crime” agenda. It levies $200 for each indictable offence and $100 per summary offence (minor offences not requiring a trial). Funds are credited toward victim services. For some offenders on the margins of society, the fines are simply out of reach.
The surcharge has met its share of opposition, from court challenges on behalf of impoverished offenders, to judicial subversion. Some judges have reduced fines to pocket change or given offenders several decades to pay.
There is good reason for their disdain. Like disastrous mandatory minimum sentences for drug crimes, mandatory surcharges hamper judicial discretion. They slap a onesize-fits-all addendum on sentencing, which by its nature is responsive to individual considerations.
Sentencing theory offers several considerations for crafting an appropriate punishment, including protecting the public, deterring crime, rehabilitating offenders and upholding respect for the law. The mandatory victim surcharge, which is applied over and above this punishment, does not always fit within these objectives. It might even subvert them.
Some financial penalties can be so onerous as to make re-offending far more likely. A stiff fine will have a very different impact on a wealthy drunk driver and a small-time drug dealer seeking to stave off eviction.
In R. v. Michael, Justice David Paciocco heard a constitutional challenge from an alcoholic, drugaddicted Inuit man living on the streets. Shawn Michael racked up $900 in surcharges on three occasions, resisting arrest while intoxicated. He was perpetually in breach of court orders, compounding the charges. Michael had a monthly allowance of $250.
The judge ruled the mandatory surcharge was cruel and unusual. Furthermore, he noted, the victim surcharge should not be confused with restitution to victims. The ruling was clear: There is no relationship between the surcharge collected from an offender and the provision of benefits to their victim, “if there even is a victim.” In fact, in Michael’s case, four of the nine offences were against the administration of justice.
The penalty defies reason. If we collect a victim surcharge over a breached court order, who is the victim?
Last week federal prosecutors were back in court defending mandatory victim surcharges. Their position appears out of sync with the Trudeau government, which introduced legislation last fall to restore judicial discretion in applying the surcharge. But that legislation hasn’t been debated yet, much less passed.
In the latest volley, prosecutors argued even if mandatory victim surcharges are cruel and unusual, there may be circumstances in which such punishment could be justified. It’s a frightening position.
The Canadian Charter of Rights and Freedoms is the touchstone of our democracy. It protects Canadians against unreasonable government interference with our individual freedom. It is the standard by which our highest court determines how the law is applied and, occasionally, when it must adapt.
As attitudes evolved around quality of life, the Supreme Court ruled unanimously that to deny a suffering patient seeking medical assistance in dying was, indeed, cruel and unusual punishment. In the spirit of the Charter, it ordered Parliament to write a better law.
The issues at stake with this “tough on crime” relic are of a lesser scale, but the principle is the same. Justice is not served by mandatory victim surcharges — unrelated to actual victim suffering, and imposed regardless of sentencing considerations or ability to pay — when the impact of the fine is grossly disproportionate to the offence.