Apologies for my prolonged absence. I’m back. (I think.) And a pretty good place to start is a recent decision by Justice David Paciocco of the Ontario Court of Justice striking down the “victim surcharge” imposed on persons convicted of any offence, regardless of the nature of the offence in question and ― since the enactment of amendments to the Criminal Code as part of the federal government’s “tough on crime” agenda ― of the offender’s ability to pay. The ruling, R. v. Michael, is available here thanks to Michael Spratt, who also has some thoughts on it on his blog.
Justice Paciocco had convicted Mr. Michael of a total of nine summary conviction offences, ranging from some breach of previously-imposed conditions to (fairly minor) assaults, which meant that he ought to have imposed a 900$ surcharge in addition to whatever combination of jail time and probation was a fit sentence under the principles set out in the Criminal Code. But Mr. Michael is alcoholic and destitute, splits time between living on the street or in shelters and staying with (equally destitute and troubled) relatives, and his income consists of welfare payments of 250$ a month. He has, Justice Paciocco found, no means to pay the 900$ at present, and no reasonable prospects for doing so in the foreseeable future, if ever. The 900$ is not just all he has ― it is much more than he ever had or likely ever will have. Requiring him to pay the “surcharge,” Justice Paciocco holds, amounts to “cruel and unusual punishment” prohibited by s. 12 of the Canadian Charter of Rights and Freedoms.
The first issue he had to address in arriving to this conclusion was whether the “surcharge” was a form of punishment at all. Justice Paciocco rejected the Crown’s arguments to the effect that it was not. The “surcharge,” he found, “functions in substance like a fine” (par. 16), which is a paradigmatic form of punishment. Furthermore, its “proclaimed purpose, holding offenders to account, falls squarely within the purposes of sentencing” recognized by the Criminal Code and the Supreme Court’s jurisprudence (par. 10). However different it is from the usual forms of punishment under the Criminal Code, the “surcharge” is a punishment too.
The test to determine whether a punishment is “cruel and unusual” within the meaning of the s. 12 of the Charter is whether it is “so excessive as to outrage standards of decency” ― a standard “intended to reflect deference to Parliament’s legislative authority” (par. 18). In assessing whether the “surcharge” meets this test, one question is whether one ought to look at the amount imposed for each offence or at the amount imposed on an offender. Pointing to the principle of totality, which requires combined sentences for multiple offences not to become disproportionate to an offender’s guilt, Justice Paciocco chose the latter course.
In his view, the effect of imposing the equivalent of a 900$ fine on a destitute person not likely to be able to pay it is grossly disproportionate to the penological effects at which it aims. The costs of the “surcharge” are onerous. Even if the Crown does not attempt to collect the “surcharge” (and it is not clear that it, or more likely collection agencies to which it would assign the right to do so, would not), such a person could be prosecuted for failure to pay and would have to argue that the failure is due to inability rather than unwillingness. Perhaps most importantly for Justice Paciocco, an unpaid “surcharge” is an unpaid debt to society; so long as it is due, even if it cannot be collected, an offender cannot be fully reconciled to society. Underscoring the point, the time required for him or her to apply for a “record suspension” (formerly a pardon) does not begin to run until the “surcharge” imposed is paid in full. Giving such a person more time to pay the surcharge would do nothing to solve all these problems.
The “surcharge”‘s benefits, by contrast, are elusive. Even accepting that it serves to provide additional “accountability,” it is disconnected from the usual principles of sentencing, being entirely unconnected to the circumstances of the offender or the offence. Parliament chose to make the “surcharge” mandatory and remove the judges’ discretion not to impose it on offenders to whom it would pose “undue hardship” because this discretion was, in its view, too often exercised. But there would have been any number of ways to limit the number of cases in which the “surcharge” was waved, by making the criteria for such a waver more precise, without altogether removing the discretion and imposing the “surcharge” on those genuinely unable to pay it.
The Crown’s final gambit in its defence of the “surcharge” was to argue that Justice Paciocco could avoid imposing it by adding a nominal fine to Mr. Michael’s sentence. When a fine is imposed, the surcharge must amount to 30% of the fine; if the fine is nominal, so is the surcharge, and disproportionality is avoided. Justice Paciocco himself had taken that course in other cases, as had other judges (including Justice Healy of the Court of Québec in R. v. Cloud, 2014 QCCQ 464, which I discussed here). But under binding Ontario precedent, such this manoeuvre is not open in all cases. And because the unconstitutional effects of the “surcharge” cannot always be avoided in this way, it is itself contrary to s. 12 of the Charter. Nor can it be saved by the Charter’s s. 1. In Justice Paciocco’s view, a violation of s. 12 never can be, because it entails disproportionality, whereas s. 1 is a proportionality test.
This seems quite right. Justice Paciocco’s opinion is persuasive if a bit fastidious. And Mr. Spratt, in the post linked to above, is right to call out the Crown for its hypocrisy in trying to save the “surcharge” by inviting the court to avoid it in move which in other cases it describes as a form of “insurrection.” But, as Mr. Spratt notes, the hypocrisy only underscores the senselessness of the “surcharge” as it now exists. I have argued elsewhere that the surcharge is also violation of property rights (which unfortunately are not protected by the Charter), and an especially odious form of redistribution from the poor to the well-off. But it is quite fair to describe it as vicious and cruel. Unconstitutionally so.