A scuffle has emerged between the courts and Ottawa over the federal government's plan to force offenders to pay a fine to victims and their families – "a tax on broken souls," one judge calls it. As members of the judiciary and the government go toe-to-toe over where judicial discretion meets Parliamentary sovereignty, what everyone is missing is where the provinces come into the whole mess.
In December, Justice Minister Peter MacKay told The Canadian Press that judges across Canada would "see the wisdom" in applying the victim's surcharge, which the federal government amended in October, while some judges told the outlet that they would refuse the order.
MacKay's changes double the federal victim's surcharge – from 15 to 30 percent of any fines already being paid – and make it mandatory for judges to impose. If there is no fine, the court must collect $100 for each summary conviction and $200 for each indictment. Judges have discretion to raise the surcharge, but must charge at least the minimum. The money collected goes into provincial funds, which finance various operations to help victims of crime and their families.
At least that's how it was supposed to work.
Judges in Newfoundland, Ontario and British Columbia have refused to impose the surcharge.
The Justice Minister responded by issuing a stern warning that judges do not have the authority to disobey the Crown.
A spokesperson for MacKay's office told National Magazine that the program isn't quite as harsh as it sounds. "If an offender shows they are unable to pay the victim surcharge, judges have the discretion to impose a provincial fine option program where they work for credits to pay off their debt," the spokesperson said in an email statement.
Yet several provinces have confirmed that things are not quite so simple.
Representatives from the justice departments in six provinces have indicated that they do not currently have programs in place to allow offenders to work off the surcharge, which can often reach hundreds or thousands of dollars.
And while some provinces have programs in place that allow offenders to pay fines with community service, enacting legislation does not always allow those programs to cover the mandatory federal levy.
Depending on the provincial legislation establishing the victims’ fund, the federal change can have very different implications.
Previously, federal law was clear: A judge could waive the surcharge, but couldn’t allow the offender to work off their dues in an alternative payment program. That was removed in Bill C-37, the Increasing Offenders' Accountability for Victims Act, which implemented the changes to the victims surcharge.
But there is apparently more to it than repealing a section of the Criminal Code.
A spokesperson for the Justice Ministry in Nova Scotia was adamant that the province could not allow offenders to work off their debt through the province's existing fine repayment system. Indeed, in the Victim's Rights and Service Act, the provincial legislation that brought the original, non-mandatory, surcharge into force, the only option is to make the offender pay. Spokespeople from the ministries of justice in Manitoba and Saskatchewan confirm that the Prairie provinces are in similar positions.
The Victims of Crime Act, which manages the surcharge in Alberta, clearly states that "the surcharge may be collected in the same manner as a fine," seemingly allowing the province to pass off the repayment to a community service or work program. A spokesperson for the department confirmed that an alternative payment program exists to repay the surcharge. The same goes for New Brunswick and PEI.
Meanwhile, British Columbia, Ontario and Newfoundland simply have no fine repayment programs in place. Implementing one would carry a significant cost. The ministry in British Columbia says it is analyzing options.
Most department spokespeople contacted by National were unsure how judges would even go about enforcing the surcharge if the accused can't afford it.
Ottawa says it's up to the provinces to change their enacting legislation, and set up the programs, but it supports the idea of alternative payment.
"Although offenders who participate in fine option programs will not contribute money to provincial/territorial services for victims, their participation in the program will serve to remind them that they are accountable to the victims they have harmed — and to society," a spokesperson for the Justice Department says.
Since the regulations came into force, judges have been left with a choice when it comes to resource-strapped offenders who would be unable to pay the surcharge — either try and force them to pay anyway, or subvert the law.
In several cases, throughout November, judges have seemingly feigned ignorance and charged below the required level, or merely waived the surcharges altogether, without recognizing that they no longer have that right. Justice James Gorman, a provincial court judge in St John's, flouted the law in a November ruling, where he refused to impose the $100, citing that the crime occurred before the mandatory fine was imposed. Imposing it, he wrote, "would have had a constitutionally protected right to the benefit of the lesser punishment which was in existence at the time he committed his offences."
One judge who spoke to National is taking a wait-and-see approach to the measure’s constitutionality.
A spokesperson for the federal ministry did confirm that judges are not expected to enforce the mandatory surcharge for crimes committed before the legislation came into force, in October. That didn't stop MacKay from admonishing those judges just the same, as he made no distinction between crimes that were committed before and after the surcharge was made necessary.
"There is no excuse for judges disregarding the law — it degrades the judiciary and undermines public confidence and the very justice system they are sworn to serve," MacKay wrote in an op-ed in the Leader Post.
In one case, British Columbia judge Tom Gove ruled that an offender who could not, and subsequently would not, pay the surcharge should be sentenced to jail time. Gove was relying on sections of the Criminal Code that allows a judge to apportion jail time, based on minimum wage, to count towards a fine. But some provinces do not refer to the surcharge as a fine at all, and federal language to that effect was removed in 2000.
It's unclear if sending the offender to prison to work off the money owed, per Gove's solution, is a viable solution, says Kitchener criminal defence lawyer Craig Parry, who faced the new, beefed-up surcharge while trying a drug trafficking case in November. At sentencing, the judge opted to ignore the amendments to the victims surcharge, as the crime occurred before the changes came into effect.
According to Parry, as judges are eventually dragged into trying to enforce the surcharge, things will get messy.
"Logistically, it's a nightmare," he says. He says there's no guarantee that the money pulled in by the surcharge will even surpass the increased costs of the program. "We'd probably need to double our compliment of judges."
For instances where a judge is considering further action against an offender who says they cannot afford the surcharge, the court can order an inquiry into whether or not they have the means. Otherwise, says Parry, the process of drawing blood from a stone verges on the cruel and unusual.
However, the mandatory nature of the surcharge offers no proviso for such an inquiry, which Parry says could open up the changes to a constitutional challenge. And yet those most affected by the regulations, the destitute and impoverished, are the least able to launch the challenge, he adds.
Ultimately, he says, judges are “dealing with the situation in their own way.
Several observers, including the Canadian Bar Association, had issued warnings in advance of Ottawa's unilateral hiking of the surcharge. The National Criminal Justice Section and the National Aboriginal Law Section of the CBA opposed passage of Bill C-37 on grounds that it would remove judicial discretion and impact vulnerable and marginalized offenders.
A 2005 ministers meeting concluded that the surcharge should be made mandatory. Manitoba led the pack in suggesting that it be raised from its then level of 15, to 20 per cent.
To study the issue, New Brunswick was tasked with putting together a comprehensive report on the deficiencies of the voluntary system. It found that the surcharge was only ever imposed about a third of the time — judges were more likely to waive the fee without reason — and even then, it was not always collected. The report noted the practice of sentencing offenders to jail-time due to their refusal to pay, but underlined that the lower rates of the surcharge didn't carry much weight — if the offender owed and would not pay $50, they would be sentenced to a day in jail, which entails being merely booked and then released.
The New Brunswick report also showed that the maximum amount that could have been imposed and collected over a five-year period from 2000 to 2005, was $4.6 million. Even doubling that number, and making the broad assumption that the government can ever get every penny collected, that still works out to shy of $2 million per year. If the program increases the burden on fine repayment programs, or increases incarnation rates, the net profit could be quickly dwindled down.
The New Brunswick study also made another salient point — in 44 percent of the cases where a surcharge was applicable, and would now be required, there was no victim involved at all. That includes numerous drug and fraud offences.
Parry says that if Ottawa wants to fix the matter, they could install a safety valve to allow an out for destitute criminals. But barring that, the courts will be tasked with "tailoring it to make it pass the muster test, constitutionally."