Should criminals pay for their crimes? This is the issue dominating Canada’s justice system as of late.
Last year, the federal government changed the rules surrounding the victim surcharge. This surcharge was levied on those convicted of crimes, with the money going to fund various victim’s services. Prior to these changes, judges had the ability to waive the surcharge if it would cause undue hardship to the convicted individual. Instead of staying with this status quo, the government doubled down on a different agenda: it doubled the surcharge while making it mandatory for all offences. The effect of this was to make the surcharge amount to $100 for a summary conviction offence, $200 for an indictable offence, or 30 per cent of any fine imposed in an offence.
The changes have already confronted controversy in the courts. In July, David Paciocco, an Ottawa judge, found that the mandatory victim surcharge constituted cruel and unusual punishment towards those who do not have the means to pay, contrary to the Charter of Rights and Freedoms. Further, he stated that the changes impacted the discretion of judges. Paciocco joins a chorus of other judges who have outright refused to comply with the law, and make the provision mandatory.
The problem has come to a head as of late. Tim McCooeye, an Ottawa man, was recently found guilty of drug possession. He was levied $100 for the victim surcharge. However, McCooeye argues that he is too destitute to pay the charge. He receives $612 a month from the government in disability pension. As a drug addict, McCooeye spends $14,400 a year to sustain his crack habit. McCooeye has said himself that the disability pension money goes towards buying “crack and food and coffee and cigarettes.”
The difference between Paciocco’s analysis and McCooeye’s situation illustrates a disconnect in the law itself. Perhaps it is a function of the polarization in our politics when it comes to criminal law. Either way, must the victim surcharge wholly fail on constitutional grounds?
Coming to the core of the problem, the victim surcharge isn’t a bad idea. After all, for years, the preoccupation of the criminal law has been the expansion of protections for accused in the system. The Charter has been interpreted broadly for these purposes when it comes to search and seizure protections, the right to instruct counsel, and detention and arrest. Only as of late has the government turned its eye towards ensuring that victims are not forgotten in the justice system. This is a matter of balance. Most reasonable people would accept a fee paid by offenders to fund services for the very victims that they wronged as being a fair punishment.
If we accept that victims are important in the administration of justice, the fee is not the problem. What is the problem is its application. There is something to be said for reserving the rights of judges to waive the fee in circumscribed situations. Such a waiver would be decided upon by balancing certain factors: is the accused genuinely unable to pay the fee? Is it their first offence? Is the offence a serious crime? By asking these sorts of questions, courts can come to decide whether the fee should be waived inparticular circumstances.
However, one thing should be made perfectly clear: people like McCooeye who spend tens of thousands of dollars in illicit drugs in a year should not be eligible for a waiver. They have the means to provide restitution to victims for crimes, but they expressly choose otherwise. It is simply not cruel and unusual punishment to make a person who wants to buy crack and coffee instead compensate victims.
On the other hand, the mandatory provision recently introduced is unnecessarily harsh on those who genuinely cannot pay; it is unfair to make a person who is a victim of circumstance pay a fee that they are unable to pay.
This illustrates the disconnect in political debate on law nowadays. On one hand, we have activist jurists who refuse to implement the law as it is, and instead construct complex rationales for entering the political debate: something they should not do. By becoming politicians instead of judges, they strike down good ideas (like the surcharge). On the flip side, we have laws that are not well-suited to the circumstances to which they apply. What are we to do?
The answer is to take a more rational and balanced approach. By tailoring the victim’s surcharge, the law can take into account victims while not penalizing those who have already been penalized by circumstance. The sideshow that has been the mandatory surcharge debate has forgotten its very purpose: actually standing up for victims.