Judges in several provinces are rebelling against the Conservative government's attempt to make all convicted criminals pay a surcharge to fund victim services.
The mandatory charge is a new flashpoint between the judiciary and the federal government. Two years ago, an Ontario Court judge opposed to The Truth in Sentencing Act – which ended two-for-one credit for pretrial detention – called on other judges to give shorter sentences to make up for harsh jailhouse conditions.
The victim-services fine has sparked another backlash in the judiciary, now that judges can no longer waive the "victim fine surcharge" of up to $200 for impoverished offenders.
In Ontario, British Columbia and Alberta, judges have either refused to order criminals to pay or have found creative ways around ordering the mandatory surcharge, such as giving an offender decades – even 99 years – to pay. Ontario Court Judge Stephen Hunter of Ottawa even ruled that the mandatory surcharge is unconstitutional, without being asked to do so by the defence. The Crown is appealing that ruling.
There are no hard numbers on how many judges are refusing to apply the new law, which requires either a 30-per-cent surcharge on any fine levied, or if no fine is set, a flat fee of $100 or $200, depending on the seriousness of the offence.
Ontario's Ministry of the Attorney-General said it does not track victim-fine surcharges, and Associate Chief Justice Lise Maisonneuve of the Ontario Court would not provide an estimate.
But lawyers in several jurisdictions say the opposition is widespread.
In Kitchener, Ontario Court Justice Colin Westman is issuing $1 fines, resulting in a 30-cent surcharge, to any impoverished offender.
In an interview, he denounced the mandatory 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.
He wondered if a "special federal force" will venture under bridges to collect the debts.
"If you sat in a typical provincial courtroom and saw all the broken souls coming before us that came from non-existent homes, you could understand the problem," he said.
Asked what right he has as a judge to skirt the law, he said, "We don't have a right – that's the problem.
"They took it away from us. They pay us one-quarter of a million dollars a year and they don't trust us to assess a surcharge on those who can afford it."
A justice department backgrounder says the law, titled the Increasing Offenders' Accountability for Victims Act, will "ensure that the victim surcharge is applied in all cases without exception," except where programs exist that allow offenders to do community service instead. The law took effect Oct. 24.
Paloma Aguilar, press secretary to Justice Minister Peter MacKay, stood behind the extra financial penalty, saying the government is committed to giving victims of crime a stronger voice, and the surcharge will fund much-needed victims services.
Paul Lewandowski, an Ottawa criminal lawyer, represented a drug-addicted refugee claimant from Sierra Leone who pleaded guilty to stealing $9 of chocolate bars to resell, and who was sentenced to a little more than a week in jail.
Mr. Lewandowski said that while judges must apply Parliament's laws, they need to ensure that a sentence is just and in proportion to the crime.
He called the mandatory nature of the fine "a giant placebo to placate victims' rights groups."
Anthony Moustacalis, president of the Ontario-based Criminal Lawyers Association, said that 55 per cent of accused offenders receive legal aid, and that the requirement for legal aid is annual earnings under $10,800, and a possible jail sentence.
A Toronto judge allowed an offender 99 years to pay, he said. An Alberta judge gave an offender no time to pay, sentenced that offender to a day in jail for defaulting, but made that jail time overlap with the time he was already serving.
In British Columbia, judges are allowing 10, 11 or even 50 years to pay the fine, Vancouver lawyer Eric Gottardi said.
"It certainly shows the level of frustration the judges have," he said.
"It's dangerous because this is the kind of thing the Conservatives have used to justify taking discretion out of the hands of judges."