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Judges in several provinces have refused to levy the federal government’s mandatory surcharge for convicted criminals.PETER POWER/The Globe and Mail

A Quebec judge says the judiciary can and should confront the federal government's mandatory financial penalty for convicted criminals, and he has set out how do so in a manner that respects judges' obligation to follow the law.

The proper response when faced with offenders who are poor, Quebec Court Judge Patrick Healy said in a ruling this week, is to fine them something very small, like $5, which makes the required 30 per cent surcharge manageable, at $1.50, and avoids costs that would otherwise amount to hundreds of dollars.

A Quebec prosecutor had told Justice Healy he must impose a $400 surcharge on a homeless aboriginal man, Richard Cloud, who was convicted of two crimes. Justice Healy, a former McGill University law professor, wrote a 10,000-word ruling devoted solely to explaining why he must not.

"Within the measure allowed by law, the surcharge must be applied with due regard for proportionality," he wrote.

Justice Healy's ruling is the most thorough judicial challenge to the victim fine surcharge, which became mandatory in late October, that has come to public attention. The Conservative government says the mandatory penalty goes toward victim services, and is part of an effort to alter the justice system's balance between the offender and the victim.

Paloma Aguilar, a spokesman for Justice Minister Peter MacKay, said she could not comment on the specifics of the case, but said that before the surcharge became mandatory, judges often waived it. "The perspective of victims has been brushed aside for far too long," she said.

Judges in several provinces have refused to level the surcharge in many cases involving indigent offenders. Sometimes, judges have given 50 years to pay it, declined to order a surcharge, or opted for an approach similar to Justice Healy's. One Ontario judge ruled the surcharge unconstitutional. That ruling and two others in Ontario have been appealed by the province's Attorney-General's Ministry.

Mr. Cloud, who receives $600 a month in social assistance, had pleaded guilty in a plea deal in which he was sentenced to three months in jail and two years probation for knocking over a convenience-store display and assaulting a person with a stone.

Under the Conservative government's Increasing Offenders' Accountability to Victims Act, criminals must pay a $200 charge for each indictable (serious) offence, and $100 for each summary (less serious) one – unless a judge orders a fine, in which case the victim surcharge is an additional 30 per cent.

Justice Healy explained why his approach is the only permissible option for judges: Imposing the $200 surcharge on the two counts, and allowing a delay, would extend the sentence intolerably. Imposing the surcharge, finding Mr. Cloud in default and ordering a jail sentence of five days – with a reduction of the agreed-on sentence of three months by that same five days – would be disingenuous. Only by imposing a small fine and surcharge could he create a fair sentence, he said.

"I am bound … by the oath and dignity of my office," and cannot disobey the law, Justice Healy wrote. But he said judges still need to interpret the surcharge law in a way that conforms to Canada's sentencing principles. "The imposition of a surcharge of $400 on Mr. Cloud would serve no principle or objective of sentencing."

Mr. Cloud, 41, originally from New Brunswick, was raised in foster homes, and has been in and out of prison for 22 years. Justice Healy said applying the mandatory surcharge would violate sentencing principles of fairness that deal specifically with aboriginal peoples. But he said the penalty would also be unfair to non-aboriginal, indigent offenders.

Yves Vaillancourt, a lawyer who represented Mr. Cloud, praised the ruling, and said he hopes it serves as a model for other Quebec judges. Other indigent offenders in Montreal have been jailed several days when they could not pay the surcharge, he said.

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