Crown is appealing judges’ decisions

Both cases involve refusal to apply mandatory victim fine surcharge

Ottawa’s Crown attorney’s office has appealed the decisions of two judges who refused to impose the federal Conservative government’s controversial new mandatory victim fine surcharge, including one who ruled that the new law was unconstitutional.

The Crown appeals target the cases of a pair of thieves who were spared having to pay the fine because they couldn’t afford to pay it. One of the men was a refugee from Sierra Leone with post-traumatic stress disorder who had stolen seven chocolate bars worth $9 from a Dollarama, while the other was a recovering drug addict who tried to steal a cellphone from a Best Buy store on Coventry Road.

The summary conviction appeals were filed Wednesday in Ottawa court and ask that the decisions waiving the $100 victim fine surcharge be overturned. The Crown is asking that a Superior Court judge order the offenders to pay the fine within 30 days.

The Crown has yet to appeal cases where judges granted offenders decades to pay the mandatory victim fine surcharge or fined them a single dollar in order to reduce the victim fine to just 30 cents.

In the case of the man who tried to steal the phone, Ontario Court Justice Stephen Hunter found the new mandatory victim fine surcharge was unconstitutional.

The exact reasons for Hunter’s decision in that case are not known, but in an earlier case he found the mandatory nature of the new victim fine surcharge made it a tax and therefore unconstitutional. In that case, Hunter unilaterally made the decision without a request from either the defence or the Crown for such a finding.

The Crown alleges in the notice of appeal that the manner in which Hunter raised and decided the matter was an error in law.

“On Nov. 21, 2013, Justice Hunter, on his own motion, raised the constitutionality of section 737 and decided it was unconstitutional,” read the notice of application. “There was not proper notice provided of this motion nor was the Crown provided an opportunity to make complete and proper submissions.”

The Crown has yet to appeal cases where judges granted offenders decades to pay the mandatory victim fine surcharge or fined them a single dollar in order to reduce the victim fine.

The Crown also appeals a decision by Justice Peter Coulson to waive the victim fine surcharge for the chocolate bar thief.

“If there has ever been a complete waste of resources, this would be it,” said lawyer Paul Lewandowski, who represented the accused, a 49-yearold survivor of the civil war in Sierra Leone who lives on a disability pension.

He suggested the Crown should abandon the appeal, and with the public money they’ll save, pay the victim fine surcharge themselves.

Lewandowski said the appeal is an example of “overzealous and misguided Crown policy.”

“He’s a refugee with PTSD who barely makes end meet,” said Lewandowski. “It’s ridiculous to think this will somehow benefit victims of crime in his particular case.”

But the Crown appeal argues that Section 737 mandates that the victim fine surcharge be imposed and the court has no jurisdiction to waive it or exempt the offender.

Since Coulson refused to impose the victim surcharge, “the sentence is therefore illegal,” the Crown alleges.

Coulson didn’t give any reasons for why he waived the victim fine surcharge, although he hinted at dissatisfaction with the government’s decision to remove judges’ discretion. Previously, the law allowed judges to waive the fine in circumstances where the fine would pose an undue hardship.

Complaints from victims’ rights advocates that judges were waiving the surcharge too freely led to the Conservative government’s Increasing Offenders Accountability for Victims Act and the mandatory fines.

The lawyer for the man who was exempted from paying the fine said his client is a 27-year-old part-time labourer with a drug problem who had started attending a methadone clinic. Alan Brass had yet to speak to his client, who is still in jail, but said the new law “criminalizes poverty.”

“This is legislation that is punitive and it is penalizing the poor,” said Brass.