Ottawa Citizen

Judge admits defeat on victims’ surcharge

Higher-court case ends ‘insurrecti­on’ that began with Ottawa jurist

- ANDREW SEYMOUR aseymour@ottawaciti­zen.com Twitter.com/andrew_seymour

An Ottawa judge who struck down the Conservati­ve government’s mandatory victim surcharge as cruel and unusual punishment in a landmark decision now says he has no choice but to impose it after a ruling from a higher court.

In a decision that appears will bring an end to the steady stream of constituti­onal challenges to the contentiou­s law, Ontario Court Justice David Paciocco conceded this week that his decision finding the surcharge to be of no force or effect could no longer stand in the face of an Ontario Superior Court ruling that upheld the mandatory fee intended to help raise funds for victims of crime.

The surcharge amounts to 30 per cent of any fine imposed on an offender or $100 or $200 per offence, depending on whether prosecutor­s proceed by summary conviction or indictable offence.

Critics of the surcharge have argued that its one-size-fits-all approach discrimina­tes against the poor.

But Ontario Superior Court Justice Bruce Glass ruled last week that the surcharge was neither a punishment nor grossly disproport­ionate, since offenders can be given time to pay.

Those findings were contrary to the conclusion­s Paciocco reached in the Ottawa case of an impoverish­ed aboriginal offender named Shawn Michael that had, until recently, been relied on by some of Paciocco’s fellow judges to avoid imposing the surcharge.

Paciocco said he wouldn’t normally follow Glass’s decision in the Cobourg case of Edward Tinker and three other offenders, but that he didn’t have a choice since Glass’s conclusion­s are binding case law. Unless there is a competing decision from the Ontario Superior Court or Court of Appeal for Ontario that strikes down the surcharge, the mandatory fee must be imposed, Paciocco concluded before handing down $600 in surcharges to an unemployed 19-yearold convicted of armed robbery.

Advocates for the poor said they were highly disappoint­ed with the Tinker decision and the impact it will have.

“They are going to be hit with the full victim surcharge,” said Jonathan Rudin, program director of Aboriginal Legal Services in Toronto. “All they can ask for is this sort of illusory time to pay.”

The Tinker decision also appears to have brought to an end what the Crown once described as an “insurrecti­on” by judges against the highly divisive law that removed their discretion about when to apply the surcharge.

“It is not ending with a bang, it is ending with a whimper. Or a Tinker, I suppose,” Rudin said.

In the early days after the surcharge became mandatory, some judges openly defied the law and refused to impose it. Some found creative ways to avoid imposing the surcharge by granting offenders decades to pay or giving them concurrent jail sentences for refusing to pay. Others sided with the government.

Paciocco said he normally wouldn’t be persuaded by the decision upholding the surcharge since it lacked an in-depth analysis of several areas that Paciocco dealt with in his ruling in the Michael case.

Paciocco said the Tinker decision didn’t consider the effect the surcharge had on those who are poor versus those who are not.

“Many offenders who appear in these courts are addicted, mentally ill. They are often aboriginal offenders who have often accumulate­d numerous conviction­s for minor offences and quickly accumulate victim surcharges in the thousands of dollars,” said Paciocco. “The decision in Tinker does not address the impact that it might have to have a sentence hanging over one’s head indefinite­ly when an individual is unable to pay.”

The Tinker decision has also wiped out a much-anticipate­d appeal of the Michael decision that was set to start April 20 in Superior Court. Prosecutor­s told intervener­s in the case last week that they were abandoning the appeal because it was no longer necessary given the Tinker ruling.

The Michael case was expected to be the test case for the surcharge, and intervener­s and defence lawyers said it felt like the rug had been pulled out from under them.

Defence lawyers said they are now considerin­g an appeal of Paciocco’s ruling Monday, and anticipate there will be an appeal of Tinker.

“Defence lawyers have not given up the victim-surcharge fight,” said Trevor Brown, president of the Defence Counsel Associatio­n of Ottawa.

 ??  ?? David Paciocco
David Paciocco

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