Judges get creative to free poor offenders from paying victim-services surcharge

The judicial insurrection is continuing against aspects of the Conservative government's tough-on-crime agenda.

The Globe and Mail reports the backlash against recent federal legislation doubling the victim surcharge levied against convicted criminals and eliminating a judge's ability to waive it has spread to several provinces.

The Globe said judges in Ontario, British Columbia and Alberta have either refused to order criminals to pay the surcharge, which maxes out at $200, or adhered to the letter of the law but found ways to subvert it, such as giving the offender years, even decades, to pay it.

The Conservatives passed the Increasing Offenders' Accountability for Victims Act last April, and it received royal assent in June. It amended the Criminal Code to boost the surcharge, which goes to the provinces for victims' services programs, to $100 from $50 in a summary conviction and $200 from $100 for an indictable offence.

A judge can no longer waive the surcharge if an offender pleads an inability to pay. Instead, offenders can participate in a "fine option" program such as community service.

[ Related: Legislation to Double Victim Surcharge Passes Parliament ]

Judges are already bridling at the Conservative government's elimination of the two-for-one credit in 2010 on prison terms routinely given to cover the time a still-unconvicted accused spends in pre-trial custody.

Some judges have been invoking an exception under the law and awarding 1.5-to-one credit where circumstances warrant.

The Globe said there is no data on how many judges are refusing to impose the surcharge but said lawyers in several jurisdiction report opposition is widespread.

In Ontario, for instance, a judge is imposing $1 fines on impoverished offenders to get around the requirement that the surcharge equal 30 per cent of the fine.

In an interview with the Globe, Justice Colin Westman criticized the mandatory nature of the surcharge as a tax on "broken souls."

“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?” he asked.

The Ottawa Citizen reported last month that Ontario Court Justice Heather Perkins-McVey initially gave a mentally-ill alcoholic who stole from a government liquor store 50 years to pay his $100 surcharge. But she learned later that a 1999 Ontario government order-in-council required surcharges to be paid within 50 days.

Perkins-McVey told defence lawyers they would now need to mount a constitutional argument against the law's mandatory nature.

[ Related: Judges still resisting Harper government’s tough-on-crime policies ]

Meanwhile the Ontario Crown attorney's office has appealed the rulings of two judges who found the mandatory surcharge to be unconstitutional, the Citizen reported last week.

In one case, a refugee from Sierra Leone who suffered from post-traumatic stress disorder had been convicted of shoplifting $9 worth of chocolate bars, while in the other a drug addict tried to steal a cell phone from an electronics store. Each faced a $100 surcharge.

In the latter case, Ontario Court Justice Stephen Hunter said the mandatory nature of the surcharge made it a tax and therefore it was unconstitutional. In its notice of appeal, the Ontario Crown argues Hunter had no right to make a unilateral decision without hearing arguments.

“There was not proper notice provided of this motion nor was the Crown provided an opportunity to make complete and proper submissions," the notice reads, according to the Citizen.

Likewise, the Ontario Crown is arguing that under the law Justice Peter Coulson is not empowered to waive the surcharge against the chocolate-bar thief, who lives on a disability pension.

His lawyer, Paul Lewandowski, said the Crown would be better off abandoning the appeal and using the money it saves to cover the surcharge.

“He’s a refugee with PTSD who barely makes end meet,” Lewandowski told the Citizen. “It’s ridiculous to think this will somehow benefit victims of crime in his particular case.”

In an interview with the Globe, Lewandowski said judges must apply the laws passed by Parliament but they also need to ensure a sentence is just and in proportion with the crime.

Judges see the government's approach on the victim surcharge and two-for-one time credit on prison terms as a threat to judicial discretion, Vancouver defence lawyer Eric Gottardi told the Globe.

“It certainly shows the level of frustration the judges have,” he said.

The government argues it's refocusing the justice system on victims.