The provincial prosecutor defended changes made by the federal Conservatives to make the victim surcharge mandatory, while also calling out several judges for what the Crown alleges were illegal or improper attempts to avoid imposing the surcharge.
The surcharge was made mandatory and doubled last October, requiring judges to impose a $100 surcharge for summary conviction offences and $200 for indictable offences, or 30 per cent of the amount of any fine. The funds are supposed to help pay for victim services.
In a document filed in court Monday, the Crown’s scorn was particularly harsh for Ontario Court Justice Heather Perkins-McVey, who had five of her recent decisions cited as examples of the “brazen conduct” of Ottawa judges who have either refused to apply the surcharge, handed out $1 fines that reduced the surcharge to 30 cents, extended the time to pay or found them in default and sentenced them to concurrent time in jail.
The Crown accused Perkins-McVey of “unlawfully jailing an impecunious offender” when she sentenced the woman to jail in lieu of paying the surcharge. They criticized the “activist nature” of her unilateral decision to impose a $1 fine on another woman without consulting the Crown and after the defence had asked for additional time to pay the $100 fine.
“Sentences designed to thwart the will of Parliament and circumvent otherwise mandatory provisions are illegal sentences,” regional Crown counsel Dallas Mack argued in the legal filing. “It also offends the rule of law.”
Prior to the amendment to make the surcharge mandatory in October 2013, judges had the power to waive the fee if it would create an undue hardship. Judges routinely waived the surcharge in cases where an offender was going to jail or if they were poor or of lower income, many times without inquiring as to whether the offender could afford to pay.
Removing the discretion of judges to waive the victim surcharge was a “necessary step” after other measures to address the “epidemic disregard” of judges to impose the fee before it was mandatory had failed, the Crown argued. The actions of judges since the amendment to the law “illustrates the interagency of the problem that pre-existed the amendment — a failure to properly impose the surcharge where appropriate,” the Crown alleged.
The provincial Crown’s office filed the materials in response to a constitutional challenge of the mandatory nature of the surcharge filed by Daniel Larocque in L’Orignal court.
Larocque, who is mentally ill and lives on $71 a month after his housing is paid for by Ontario Works, argues that the mandatory nature of the surcharge amounts to cruel and unusual punishment. Larocque also argues that the surcharge deprives his right to security, since paying it will leave him penniless, and liberty, since he could be jailed if he doesn’t pay the $700 he would otherwise owe within 30 days of being sentenced.
The provincial Crown argues that the Supreme Court has already ruled an impoverished offender such as Larocque can’t be jailed if he can’t afford to pay the surcharge. The provincial Crown also argued that Larocque can bring an application for an extension of the time to pay.
The Crown further argued that the surcharge isn’t a punishment, but rather a “nominal fee” and an ancillary order whose purpose is to provide assistance to victims.
Larocque’s lawyer said he was not surprised the provincial Crown elected to attack judges since both the Crown’s office and Minister of Justice Peter MacKay “just threw gas on the fire with this from Day 1” when they started openly criticizing judges.
“It seems to be a politician as well as Crown attorney way of dealing with stuff these days … the Crown versus the judge” said Yves Jubinville. “They are picking battles with the judges.”
Jubinville believes it is “not an efficient argument” since it is irrelevant to Larocque’s constitutional challenge.
“I’m not sure what the purpose is, but it’s there,” he said.
Original Article
Source: ottawacitizen.com/
Author: ANDREW SEYMOUR
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