Judges still resisting Harper government’s tough-on-crime policies

(Reuters photo)Stephen Harper's always nurtured a suspicious attitude towards the judiciary.

Even before he became prime minister, the Conservative leader questioned the impartiality of judges, accusing some Liberal-appointed judges of pursuing a social-activist agenda.

"The courts are supposed to be independent," Harper told reporters back in 2006, according to the Globe and Mail.

"I am merely pointing out a fact that courts, for the most part, have been appointed by another political party. But courts are supposed to be independent regardless of who appoints them and they are an independent check and balance."

After more than six years in power, the Harper government has worked to counter what he sees as soft-hearted judicial practices, adding mandatory minimum sentences for a number of crimes, among other changes.

Though not without difficulty.

The government in 2010 eliminated the two-for-one credit factored into prison sentences, which deducted two days for each day spent in custody before conviction.

However, the Winnipeg Sun noted last year that judges are getting around the change by routinely applying an exception allowed under the new rules and awarding 1.5-to-one credit "if the circumstances justify it."

[ Related: Yukon judge challenges federal tougher sentencing law ]

Now there appears to be some push-back against the government's decision to double the victim surcharge on fines and removes a judge's discretion to waive the surcharge. The money goes to fund provincial victim-services programs.

An amendment to Criminal Code Section 737 implementing the changes went into effect late last month — so recent, in fact, that the update hasn't made it onto the government's online version of the code yet.

It doubles the surcharge to 30 per cent of any fine that is imposed and, if no fine is levied, offenders must pay $100 for a summary conviction and $200 for an indictable offence, again double the previous maximums.

The Tories are unlikely to be pleased by Ontario Superior Court Justice Colin Westman's reaction to the new law.

The Kitchener-Waterloo Record reports Westman questioned the wisdom of the law, which he suggested hurts the most marginalized members of the community.

Westman's comments came as he was sentencing an unemployed Kitchener teen for robbery and other crimes, the Record said.

Although the new rules came into effect Oct. 23, the Crown is interpreting them to cover crimes committed after that date, not sentences handed down since then, which let the teenage miscreant off the hook for the higher surcharge.

Still, Westman questioned the wisdom of levying the surcharges without exception on drug addicts, homeless people suffering mental-health problems and others who simply can't pay, the Record reported.

"It's embarrassing to be part of a system that can impose those kinds of laws," Westman said.

He went on to slam the Harper government's whole tough-on-crime approach, saying the surcharge changes show federal politicians are "out of touch with reality."

[ Related: Manitoba judge calls mandatory minimum penalty for shooter 'excessive and harsh' ]

Social-justice advocate Dyanoosh Youssefi also took on the new requirements in a Huffington Post blog.

"If a judge waives the victim surcharge, that is not tantamount to a person's avoidance of accountability. The convicted person still has to serve his sentence," Youssefi, a part-time law professor at Seneca College, wrote in her post.

"The fundamental principle that it would be wrong to punish people because of their inability to pay should extend to the payment of victim surcharges."

She argued that if the government really cared about helping victims, it would invest in good restorative-justice programs that help victims heal by confronting their offenders and overcoming fear.

"But this government is not in the business of reconciliation, healing of victims, or true accountability," Youssefi wrote.

"It is in the business of getting votes and appearing to be tough on crime, while, in fact, just being tough on people and stupid on crime."