Justice Colin Westman still remembers when, as a young lawyer who had barely outgrown a pampered childhood in Shawinigan, Que., he first read the pre-sentence reports that contain the life stories of convicted men and women.
"It was like fiction," the 70-year-old father of two tells a reporter in his Kitchener, Ont., office during a morning break from court. "I couldn't believe the tragic backgrounds of some of these people. From the day they were born, they were behind the eight-ball."
Today, after more than two decades of seeing a steady procession of those people, whom he calls broken souls, in his courtroom, Justice Westman has become one of many in several provinces defying the spirit, and sometimes the letter, of the Conservative government's tough-on-crime agenda.
As of Oct. 24, the government has doubled financial penalties assessed on convicted criminals – $100 per summary offence, $200 per indictable offence – and removed justices' discretion to waive them for impoverished offenders. The money is for victims' services such as rape crisis centres and witness programs.
That mandatory charge, and to some extent the government's broader crime agenda, has run smack into Justice Westman and an independent judiciary.
"It's a sham to say, 'Oh, we're going to get you money off the backs of these kinds of people,'" says the sturdily built white-haired judge, a member of the Ontario Court of Justice. "They don't even have a method of collecting. It's embarrassing. And why aren't victims looked after in our general revenues, if you really have a heart?"
The new law may seem small next to others passed by the Conservative government that have limited judges' discretion. Justices are required to apply dozens of new mandatory minimum sentences. They can no longer use house arrest as an alternative to jail for many crimes, including some non-violent ones. Limits are stricter on how much credit judges can give people for time in jail before sentencing.
But the fight over the financial penalties has become a rare, open clash between the judiciary and Parliament. It is about more than making all people who commit crimes pay for victim services. It is about the limits of judicial independence and justices' right to speak publicly.
"I live in the community, too," says Justice Westman, who was appointed to the bench by Liberal premier David Peterson in 1990. "I'm not just a judge. I think sometimes these things have to be discussed openly.
"Those people in the soup kitchens I see in the courtroom, they don't have a voice. I think I have an obligation to them. These are my brothers and sisters, from a theological perspective." Justice Westman wears a Christian cross under his judicial vestments.
One broken soul
Earlier that morning, a 35-year-old woman stood in the prisoner's dock. She had spent 21 days in jail for violating a no-contact order with her husband. She had spent three weeks in the hospital for complications from diabetes, and had no place to go. Her husband took her in temporarily, and someone reported her to the authorities. She violated the no-contact order a second time.
Patiently, Justice Westman drew out her story. She suffers from depression. Her lawyer has arranged for a shelter. A teenage daughter she and her husband gave up for adoption wishes to have a relationship with her husband, and possibly with her. Her husband believes she is an alcoholic. She denies it.
"Remember one thing in life: you've got to be brutally honest with yourself," Judge Westman told her.
The Victim Fine Surcharge would have to be $200. Judge Westman fined her $9 per conviction – $18 – which brings a 30-per-cent surcharge. Total penalty: $23.40. He gave her a year to pay.
"You're going to have to use all your courage and ingenuity simply to get yourself back on your feet," he told her, advising her not to worry about getting a job for a while.
He does not ask the Crown prosecutor for her views, and she does not object.
It's more than the fine
A big question with the Conservative crime agenda has been whether justices would rule parts of it unconstitutional. A far more prosaic question turns out to be just as big: What happens when justices will not do what the law intends for them to do?
It is not just the victim-services charge. The government took away justices' right to give double credit for time served before a conviction, allowing 1.5 days for each day served in exceptional cases. But Justice Westman says he gives 1.5 routinely. He is frustrated he has no say over a part of the sentencing – the financial penalty. "These are huge decisions we are asked to make. Guilt or innocence – everything short of murder in provincial court – and they take away our discretion on when to impose a surcharge? Respect goes both ways. How's that respectful to us?" He says the key to sentencing is proportionality. "When it's mandatory, you have no opportunity to assess the very thing you're supposed to be assessing. So it's like they don't even respect their own laws. It's bizarre that a piece of legislation like that could go through Parliament. I mean, is no one down there thinking? I'm baffled."
But what he and other judges are doing is controversial in legal circles. "Judges cannot pick and choose which laws they like and which they do not. This undermines the rule of law and public confidence in the administration of justice," Adam Dodek, a constitutional law expert at the University of Ottawa, says by e-mail.
"He's right," Justice Westman replies. "In principle, what I'm doing is wrong. I have a duty and it's a sworn duty. But the greater principle is one of justice, and I take comfort that, in the scheme of things, it's more important to stand up for what is just."
He has a wide streak of independence. He once went AWOL from the army for a weekend because a superior officer would not let him go home after a week in hospital. On his return, he explained himself well enough to avoid recriminations. Today, he has little need to fear recriminations, though someone could complain to the Canadian Judicial Council, a panel of senior judges.
"Isn't someone like Nelson Mandela a wonderful example?" he asks. "He led groups which today would have been called terrorist. But he was in a box. Sometimes in life you have to step out of the box."
The federal Ombudsman for Crime Victims says that, when judges could waive the surcharge, they didn't document why they did so. But Judge Westman says, "If we didn't explain it, it was simply because it was so obvious."
Last week, a man who appeared very sad stood before him on a minor charge. "I said, 'You really seem to be troubled.' And he stood up and you could see tears coming down his cheeks. I said, 'What's the problem, what's happened?' He addressed me as sir – this is what shocks you. They still have a sense of respect. And he said to me, 'Ever since I can remember, my parents used to say to me I'm not worth anything.' He used more colourful language – that he was just a piece of garbage. He said, 'Now I'm a full-fledged alcoholic. I try to drown that noise out of my head.'
"Can you imagine living like that?" he asks. "If you beat these people into the ground, you've destroyed any opportunity of them getting on their feet and we all lose."