Sunday April 20, 2014




Judges rebel against victim surcharge

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It appears the federal government might have a bit of a rebellion from the judiciary on its hands.

This week, the Globe and Mail reported that many judges in Ontario, Alberta and British Columbia are refusing to make convicted people pay the now-mandatory and doubled victim fine surcharge or finding other ways to skirt the new legislation.

In October, the Increasing Offenders’ Accountability for Victims Act came into effect making the surcharge 30 per cent when a fine is levied and $100 for summary convictions and $200 for indictable convictions. It also took away judges’ discretion of waiving the surcharge for impoverished offenders.

Even before the new legislation became law, I had seen judges in Yorkton reduce fines in order to make the surcharge included in the amount.

Some of the tactics judges are now using include reducing fines, sometimes to almost nothing ($1 in the case of one Ontario judge) or giving offenders extraordinary amounts of time to pay (up to 99 years).

According to the Globe, one Ottawa judge even ruled the surcharge unconstitutional without being asked to by the defence. The Crown is appealing.

The unfortunate fact of the matter is that crime is overwhelmingly linked to drug, alcohol, poverty, self-control or mental health problems. The people who are being asked to pay are frequently the people who can least afford to and they don’t, which puts them in breach and the cycle repeats itself.

“Can you imagine being a person who’s got mental illness, who lives under the local underpass, at the hospital or on a park bench, who eats at the soup kitchen, and you’re going to have them pay $100 because they had their day in court?” said Ontario Court Justice Colin Westman.

“If you sat in a typical provincial courtroom and saw all the broken souls coming before us that came from non-existent homes, you could understand the problem.”

I can attest to that as I see it day in and day out at the Yorkton courthouse.

Nevertheless, I initially came out in favour of this legislation when it was tabled in the House of Commons back in the spring, “Tories get one right with victims legislation,” Crime Diary, May 8, 2013.

I may have been a little Saskatchewan-centric in that assessment, which I based largely on a major meta-study out of the UK. Researchers examined 36 papers from Australia, New Zealand, the US, Canada and the UK and found restorative justice reduced recidivism for offenders of both violent and property crimes; reduced post-traumatic stress symptoms and the desire for revenge in victims; was preferred over traditional criminal justice (CJ) methods by both victims and offenders; reduced costs when used as a diversion from CJ; and increased, by two or more times, the number of cases brought to justice.

In Saskatchewan, the program of restorative justice is called Fine Option. If an offender cannot afford to pay, they can register to work off the fine (and surcharge) through community service.

Ontario and B.C. do not have such a program, which may explain why judges in those provinces are finding ways to skirt the surcharge. The other likely reason is simply because the judges resent having their independence and discretion challenged.

“They pay us one-quarter of a million dollars a year and they don’t trust us to assess a surcharge on those who can afford it,” Westman said.


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