courts, law, lawyers

A Tax on Broken Souls

is how one judge described the Mandatory Victims Surcharge. This surcharge – an additional fine tacked onto every criminal sentence- $100 for summary offences and $300 for  indictable ones -was made mandatory for all offenders in the 2013 criminal law reforms brought in by the Conservative government.

The Surcharge was declared unconstitutional and struck down by the Supreme Court of Canada in a strong 7-3 December 15 2018 ruling, to the relief of many judges, and the entire defence bar. While $100, or even $300, seems a paltry amount to those of us with  means, it is a huge sum for those in extreme poverty, who most often found themselves lumbered with it. Moreover, the surcharge applied to each charge, so a homeless person convicted of a string of minor offences could find themselves facing a far more substantial penalty.

Trial level judges have been in quiet revolt against the surcharges ever since they  became mandatory, seeking to blunt their impact on the homeless, the mentally challenged and addicts, by granting time to pay,  sometimes running onto decades, and twisting the wording of the legislation in order to impose surcharges of 30 cents instead of $100.

The Supreme Court seems to be saying, that while cracking down on crime and criminals is all very good, imposing financial penalties beyond the means of the offender to ever pay is to impose a life sentence on that offender, and is unconscionable. While non-payment won’t ever lead to jail, it can lead to a life-time of harassment from debt collectors and even the denial of  pardon.

I think they are also sending a message to the government not to mess with judge’s discretion. They are the ones in the front lines, with flesh and blood offenders in front of them, and the advantage of submissions from both crown and defence concerning the offender’s background and ability to pay. Mandatory sentences rob judges of the ability to temper justice with compassion. and that, the Supreme court has said, yet again, is unconstitutional. Good for them!

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