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Minister of Justice Peter MacKay.SEAN KILPATRICK/The Canadian Press

The Harper government's ill-considered obsession with the rights of victims of crime is once again serving as a paving stone on the road to judicial hell. Last month, the Ontario Court of Appeal ruled that the Conservatives' new mandatory minimum sentence of three years for unauthorized gun possession is unconstitutional. This month, the government is faced with a rebellion by judges who are refusing to impose an obligatory victim-services surcharge on some convicted criminals. With an 0-2 record, it's time for a rethink.

The victims-services surcharge has existed for decades; the Harper government recently doubled the amount. So far, so reasonable. But the government also stripped judges of their power to waive the surcharge when they believe it poses an undue financial hardship. Judges must in all cases add 30 per cent to any fine they levy; if there is no fine, the offender is slapped with a mandatory fee of $100 for crimes prosecuted by summary procedure and $200 for those prosecuted by indictment. The money goes to provincial victim-support programs.

Some judges have shown their dissatisfaction by giving offenders decades to pay the surcharge, or by fining them $1, so that the mandatory 30-per-cent surcharge amounts to 30 cents. One judge found the surcharge unconstitutional because its mandatory nature makes it a tax. Ottawa is appealing that decision and calling on judges to respect the law as Parliament passed it. Justice Minister Peter MacKay says offenders who can't afford the surcharge can pay it off by doing community service for credit, or by making other arrangements.

In some cases, offenders should be fined. That's not at issue. This is about a judge's ability to judge: to decide when it will cost the system more to chase $100 out of the pocket of an impoverished offender than to waive the surcharge and move on. Or, in the case of gun crimes, when a breach of the letter of the law is serious and when it is less so. A judge's ability to exercise discretion within the law, and to consider all of the circumstances in imposing sentence, is the bedrock of a fair and humane justice system. Mandatory minimum sentences or fines aren't always inappropriate – there is a mandatory minimum for first-degree murder, for example – but they must be carefully tailored to the offence, and give judges room to exercise basic common sense. The government needs to go back to the drawing board on both of these measures.