Ontario Court Justice Stephen Hunter made the ruling Oct. 29, just days after changes to the law doubled a fine intended to help victims and removed a judge’s discretion to waive the surcharge for offenders who can’t afford to pay it.
Citing a 21-year-old Nova Scotia Court of Appeal case as the basis of his decision, Hunter found that the mandatory nature of the law made it a tax and therefore found it to be unconstitutional.
Details of the judgment, obtained Wednesday by the Citizen, emerged on the same day that federal Justice Minister Peter MacKay suggested that several Ottawa judges who have been flouting the new rules — they’ve been giving offenders decades to pay the fine or reducing the surcharge to mere cents — are “making a mockery” of the reforms.
He called the judges’ actions both “insulting” and “disrespectful” to victims.
MacKay said the judges are failing in their responsibility to “uphold the law” and that the Victims Bill of Rights the government has promised to introduce this fall may include provisions to address the issue.
“We will be looking very carefully at (decisions) that we feel undermine the very clear intent of the doubling and the buttressing of the victim fine surcharges,” said MacKay.
But in his decision, Hunter concluded that the mandatory victim fine surcharge needn’t be paid, given what the Nova Scotia Court of Appeal ruled in the case of impaired driver Gail Crowell. Crowell had initially been excused from paying a fine by a trial judge before the Court of Appeal reversed the decision.
“The Crowell case in the Nova Scotia Court of Appeal in 1992 indicated the only reason it passed constitutional muster was because it wasn’t compulsory and therefore not a tax. Now it’s compulsory. As far as I’m concerned it’s unconstitutional and I don’t impose it,” said Hunter. “If the Crown wants to appeal, I’d like to know what the answer is at this point.”
Hunter said he looked the case up “when the amendments came through, because I didn’t like this in the first instance.”
“They decided that it wasn’t a tax, and the two reasons they gave for saying it wasn’t a tax in the Nova Scotia Court of Appeal was one, because it wasn’t compulsory, the court had the discretion not to impose it, and two, the court had the discretion as to what the percentage should be in terms of what would apply,” said Hunter.
“At that time, I believe it was 15 per cent. Now it is 30, but it is a mandatory 30,” said Hunter.
“Those two things therefore make it a tax as opposed to a punishment in my view,” he continued. “In my view it’s unconstitutional and shouldn’t be imposed.”
Hunter made the comments after sentencing a man to 30 days in jail for mischief, resisting arrest, night prowling and breaches of his release and probation conditions.
The Nova Scotia Court of Appeal in the Crowell case found that the victim fine surcharge was a valid exercise of the federal criminal law-making power, even if it were structurally indistinguishable from a tax. However, it also found it was structurally distinguished from a tax because it wasn’t compulsory.
MacKay said the victim fine surcharge is part of an offender paying back his or her debt to society and to the victim.
“My view is we should err on the side of giving offenders the opportunity to make that payment. For some offenders, this is their preference as well. They actually want to make some form of restitution and compensation. It’s part of their rehabilitation. … To undermine that in such a general way, in my view, undermines the administration of justice,” he said.
The Conservatives’ decision to make the victim fine surcharge mandatory seems, however, to run contrary to what they stated in a January 2009 letter to the then-federal ombudsman for victims, Steve Sullivan.
“While I share your commitment to ensuring that services be enhanced and laws intended to benefit victims do so, we must bear in mind that the surcharge is part of a sentence,” wrote then-justice minister Rob Nicholson. “Therefore, amendments to the surcharge must be consistent with sentencing principles. It would not be appropriate to completely remove the judge’s discretion to waive the victim surcharge where circumstances warrant.”
MacKay said Wednesday the law doesn’t entirely remove judicial discretion.
“There are obvious cases where the ability to make a payment is probably very very unlikely, but the vast majority of cases, there is ability. The overwhelming majority of cases, there is some ability to make some payment,” said MacKay.
“I say follow the letter of the law and review it later if it is discovered that there isn’t the ability to make payment. I don’t think that at the time of the offence, that is the best assessment that can be made of the offender’s ability to make restitution.”
Original Article
Source: canada.com
Author: Andrew Seymour and Tobi Cohen
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