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The Supreme Court of Canada is shown in Ottawa, on Nov. 2, 2017.

Sean Kilpatrick/The Canadian Press

A rare judicial rebellion against a criminal law passed by Parliament will receive unusual backing at the Supreme Court this week − from the prosecution.

The question for the court is whether the “victim surcharge,” a mandatory financial penalty for convicted offenders, is an unconstitutional form of cruel and unusual punishment against the poor.

The surcharge is $100 for each minor offence, and $200 for each serious one; for multiple offences, the penalty can amount to hundreds of dollars. The Conservative government of Stephen Harper made the charge mandatory in late 2013. The money is supposed to go to victim services, and is aimed at holding offenders accountable, the government said.

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A group of offenders is challenging the law.

Denied the discretion to waive the penalty for impoverished offenders such as a homeless Ottawa man with a monthly income of $250, judges refused to impose it as written. One judge said it was “embarrassing” to be part of a system with such laws.

Some judges gave offenders 25, 50, even 99 years to pay. The law allows judges to use a fine as an alternative to the fixed penalties, and some have given fines as low as $1, which would include a surcharge of 30 cents.

In two days of hearings at the Supreme Court beginning on Tuesday, the Ontario Attorney-General’s department, which prosecuted some of the cases, will argue that the availability of those methods to evade the surcharge demonstrates why the law should be upheld: Because the judges retain their discretion to fit the penalties to the offender.

“A lengthy extension – years or even decades where reasonable on the facts – can be given to account for the actual anticipated income and expenses of an offender,” the province says in a filing at the Supreme Court.

As for the minuscule fines, it said judges cannot set out to “neutralize the surcharge.” But “that said, in a case where a small fine that the offender can afford is fit, having regard to relevant principles of sentencing, the surcharge would be 30 per cent of that fine.”

A lawyer for some of the offenders, however, argues that the judges’ evasive tactics show why the law should be struck down as unconstitutional.

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“It’s not appropriate to have to do an end-run around the law to avoid unconstitutional consequences,” Delmar Doucette said in an interview. At the Supreme Court, he will represent four convicted offenders ordered to pay surcharges of hundreds of dollars.

“The law is requiring trial judges to do something that they know is unjust, and they bristle at that. They should have the discretion to do what is just.”

The surcharge was a central part of the former Conservative government’s plan to rebalance the justice system in favour of victims. A surcharge created in 1989 had allowed judges to exempt the poor. Last month, the Liberal government introduced a bill that would restore that discretion. However, a similar law the Liberals introduced earlier was not passed.

Mr. Doucette and intervenors that include the Criminal Lawyers’ Association and Aboriginal Legal Services of Toronto, argue in written briefs that the surcharge does not help victims or hold offenders accountable because some people cannot pay. Some offenders are jailed because they cannot pay, which the Supreme Court has said should not be allowed. The aboriginal services group says the surcharge violates the equality rights protected by the Charter because it disproportionately affects impoverished Indigenous people.

The hearings at the Supreme Court involve four offenders from Ontario and one from Quebec. In separate challenges in the appeal courts of Quebec and Ontario, all said the surcharge is unconstitutional, either because it is cruel and unusual punishment or a violation of their right to liberty and security of the person. Both courts of appeal upheld the constitutionality of the law, essentially because those subject to it may apply for extensions.

In a chart of 24 surcharge cases Mr. Doucette and his co-counsel Daniel Santoro have put together for the Supreme Court, 12 of the offenders have mental illness, six are aboriginal, five suffered neglect and serious abuse as children, 18 have addictions and seven are homeless. Their income ranges from $100 to $1,200 a month.

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Whether the case settles the question of the judges continuing to evade the law as written will depend on how the Supreme Court writes its ruling. But judges have not been punished for rebelling. Two lower-court judges who wrote detailed rulings, one striking the law down and the other setting out why $5 fines make sense, have been promoted by the Liberal government to the top courts of Ontario and Quebec.

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