Justice Minister Peter MacKay is fighting back against an emerging judicial revolt, accusing judges of showing contempt for the law by refusing to apply a mandatory financial penalty to convicted criminals.
"Judges cannot ignore the role of the Crown in passing legislation in our democratically elected Parliament of Canada," Mr. MacKay said in an interview. "Therefore, they are there like everybody else to respect the law, not flout it."
He said that when he was a prosecutor in Nova Scotia, judges frequently used their discretion to ignore the financial penalty they were supposed to impose on offenders. "Listen, I stood in front of many judges in my day and, without any consideration whatsoever of the victim or truly delving into the circumstances of the then-convicted criminal, judges would routinely waive the victim fine surcharge."
That surcharge is now mandatory, and judges in several provinces have denounced, evaded or ignored it. The victim fine surcharge is a penalty of $100 for each summary offence and $200 for each indictable offence. That surcharge is not levied if a judge orders a fine instead – plus a government-ordered 30 per cent on top – to make the offender pay for victims services.
Judges have made that fine as low as $1, or given offenders decades to pay the surcharge, or in at least one case ruled the surcharge an unconstitutional tax. A Kitchener judge has done newspaper and television interviews and called the surcharge "bizarre," lacking in compassion and running afoul of Parliament's own sentencing law of proportionality.
The Crown is appealing at least three cases in which Ontario judges have refused to order the surcharge, which could ultimately mean that an appeal court will read the riot act to recalcitrant judges – or that they will be given permission to use the discretion they already claim to have.
The rare confrontation between the judiciary and Parliament is a test of the limits of judicial independence. Mr. MacKay could file a complaint with the Ontario Judicial Council, and a group of judges, lawyers and lay people would rule on the defiant judges' behaviour. "If I really felt a judge was flouting the law, I would file a formal complaint with the judicial council," Ian Holloway, the law dean at the Unviersity of Calgary, said in an interview.
Mr. MacKay appears intent on avoiding that kind of escalation of the dispute. He suggested that appeal courts, rather than his government, will keep the judges in line. "There are appeals under way. We believe that judges have to uphold the law and this is the law. The victim fine surcharge is part of the sentence imposed on the offender."
He disagreed with legal observers who say the judges are using the wiggle room they have been able to find in the law. "I don't think there is wiggle room. They've been wiggling."
Mr. MacKay said that judges' independence is critical, but that Parliament views the surcharge as part of a fit and proper sentence. "A $100 or $200 surcharge is out of proportion to the rehabilitation and the respect that needs to occur in a justice system? I just fundamentally disagree with that."
The Conservative government has built its crime agenda on the notion that it puts victims first. "We believe as a government that giving victims a real role and respect within our justice system includes the victim fine surcharge," Mr. MacKay said. "Let's not forget what this is about – accessing services and support and ensuring accountability for criminals' actions."
He added, "I've heard from even those who were convicted who wanted to pay – wanted to pay a victim fine surcharge and the judge in some cases insulted them by saying you're not going to ever have the ability to pay this money back. And yet it was a very important part of their rehabilitation."
Mr. MacKay praised Ontario Court Judge Kevin Phillips, who criticized the judges who refuse to apply the surcharge. "He spoke in very eloquent terms about the importance of victim fine surcharges."