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Collection: iStockphoto Item number: 92009696Yanik Chauvin/Getty Images/iStockphoto

Want to know what's wrong with the so-called victim surcharge that Conservative government two years ago made mandatory for anyone convicted of an offence? All you have to do is turn to the judgment of Justice David Paciocco of the Ontario Court of Justice, in a case called R. v. Michael. The facts are all there, in the very first paragraph of the 2014 decision.

I convicted Mr. Shaun Michael, an alcoholic and drug-addicted 26-year-old Inuit street person, of nine separate offences, occurring on three occasions. All offences share the same pattern. Mr. Michael becomes grossly intoxicated. He then becomes a nuisance. When he is approached he lashes out, committing minor assaults or damage to property. Since he is perpetually on court-imposed conditions when he does these things he commits breaches of court orders, compounding the charges. Mr. Michael faces a victim surcharge of $900 as a result of these nine offences, a supplemental punishment over and above other punishments I imposed to address the goals of sentencing. The surcharge is currently well beyond Mr. Michael's means. Mr. Michael is unemployed and is temporarily residing with his aunt when not on the street or in the shelter. He is on social assistance, receiving a street allowance of $250 per month. He argues... that imposing these surcharges on him is unconstitutional.

In 1989, the federal government created the Federal Victim Surcharge. Anyone convicted of a crime would pay a fee of at least $35, to fund compensation for victims of crime and victim services.

Judges were given broad discretion to exempt poor and destitute offenders – and they used it. A Department of Justice study found that, between 2003 and 2007, 73 per cent of offenders in Saskatchewan had their surcharge waived.

Maybe this number was too high. Or maybe it was so high because so many of those who come before the courts are beset by drugs, alcohol or mental illness and, like Mr. Michael, are in no position to pay. They are deeply troubled people, not criminal masterminds.

In any case, two years ago the Conservative government increased the surcharge – and made it mandatory. It is now $100 per minor Criminal Code offence, and $200 for more serious offences.

There is no exemption. But there is a loophole. Judges are allowed to set the victim surcharge at 30 per cent of any other fine they impose. As a result, there have been cases where a judge, faced with a destitute offender, levied a fine of $1 – resulting in a 30 per cent surcharge of just 30 cents, rather than the mandatory $100 or $200. A measure intended to allow supersized surcharges is being used to minimize them.

Judge Paciocco, for his part, simply found the law's inflexibility unconstitutional. Another, higher court in Ontario said otherwise. Higher courts, perhaps even the Supreme Court, may eventually have to weigh in.

A better solution would be for Parliament to rewrite the law. It's perfectly acceptable to impose a small, additional fee on lawbreakers, to help fund victims' services. But give judges back the discretion they used to have, to exempt offenders like Mr. Michael. Let judges do what they were hired to do: Use judgment.

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