No Big Deal?

I wrote recently about a decision of the Ontario Court of Justice, R. v. Michael, 2014 ONCJ 360, which held that the “victim surcharge” imposed in addition to any other punishment on any person found guilty of an offence is, in its current, mandatory, form unconstitutional, because it amounted to a cruel and unusual punishment for those unable to pay it and thereby discharge their debt to society. That decision, I thought, was absolutely right. Shortly thereafter, in R. v. Javier, 2014 ONCJ 361, a different judge of the same court refused to follow Michael, declaring himself unpersuaded by it and finding that the surcharge is constitutional. In my view, however, Michael remains the right decision.

Justice Wadden’s reasons in Javier are a bit schizophrenic. The greater part of them is devoted to arguing that, contrary to what Justice Paciocco found in Michael, it is (almost) always possible to sentence an offender to a fine in addition to jail and probation, so that the option of imposing a nominal fine, which results in the surcharge, calculated as a percentage of the fine imposed, if any, also being nominal and thus constitutionally acceptable. It is always possible, in other words, to get around the rule making the surcharge mandatory ― a move which, we should remember, Crown prosecutors have described as a form of “insurrection.”

Yet towards the end of his (rather brief) reasons Justice Wadden also adds that he is “[f]undamentally … not persuaded that imposition of the victim surcharge, even in the form of hundreds of dollars as contemplated in Michael, would meet the high threshold set for a declaration of invalidity pursuant to s. 51 of the Charter.” (That would be s. 52 of the Constitution Act, 1982, your Lordship.) Justice Wadden explains that

For the truly impecunious, there is no risk of being sent to jail as a result of not paying the surcharge, as a court cannot issue a warrant of committal for non-payment if the offender is truly unable to pay … When considering whether the imposition of the victim surcharge is a punishment “so excessive as to outrage standards of decency” of Canadian society I consider that there are many people in society who are in the unfortunate situation of suffering economic hardship and loss. In the context of the criminal justice system, we frequently see victims of crime who have suffered financial loss in the form of medical costs, lost wages, stolen property or the expense associated with attendance at court. Although the financial stress of paying the victim surcharge may be onerous for some offenders I am not persuaded that it is cruel and unusual punishment that would result in a declaration of the invalidity of this legislation. The effect of such a declaration would be that the victim surcharge could not be imposed on any offender, even those who clearly have the means to pay.

I could be wrong, but to me, it sounds that this is the real reason why Justice Wadden finds the surcharge constitutional ― not the possibility to minimize it by imposing a nominal fine. The surcharge, in his view, is simply no big deal, compared to the hardships of crime victims. Here, at last, is a judge who buys into the federal government’s approach.

Yet Justice Wadden does little to rebut Justice Paciocco’s arguments. In Michael, Justice Paciocco detailed the negative consequences of offenders being indebted for the amount of the victim surcharge, even if they could not be imprisoned for failing to pay it. Collection agencies, to which the government assigns the debt, could still attempt to enforce it; the offenders would need to go to court ― probably without the assistance of counsel ― to show their inability to pay; and most importantly, these offenders’ symbolic debt to society, as well as the pecuniary one, would go unpaid, preventing their rehabilitation. Justice Wadden does not even try to seriously consider the position of such offenders, the consequences for whom go well beyond mere “financial stress.”

Instead, he is concerned with the situation of crime victims. It is a laudable concern but, however much the current government might wish the contrary, one that cannot displace the judge’s duty fairly to consider the rights of the offender who stands before him. Indeed, it is worth highlighting that the offender before Justice Wadden was being sentenced for a paradigmatic victimless crime, the simple possession of a prohibited drug. Furthermore, as I have argued here,

to the extent that offenders are, on average, poorer than the victims of crime … the “surcharge” effectively operates as a wealth transfer from the poor to the better-off.

Furthermore,

even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. … [T]he surcharge is arbitrary because the amount … imposed on an offender bears no relation to the “quotient of accountability” that ought to be imposed on them. It varies only according the number of counts of which a person is found guilty, the imposition or not of a fine, and the status of the offence as an indictable one or one punished by summary conviction. A person found guilty of two counts of assault will pay more than one guilty of a single count of first-degree murder. How that is supposed to foster accountability for crimes, or give any sort of relief to crime victims is beyond any conceivable rational explanation.

Finally, Justice Wadden is surely wrong to say that finding the current surcharge provisions unconstitutional would mean that the surcharge could not even be imposed on those who are actually able to pay it. Admittedly, that would be the consequence of Justice Paciocco’s ruling, and perhaps he ought to have given more consideration to the remedy he granted. Instead of simply invalidating the surcharge provisions, it should would, I think, be possible to read in a judicial discretion not to impose the surcharge on offenders unable to pay it (which existed prior to recent amendments to the Criminal Code). It seems a safe bet that Parliament would have preferred imposing a surcharge with such a discretionary safety valve to not imposing one at all. In any case, Parliament remains free to enact such provisions even if the courts simply invalidate the existing ones.

Contrary to what Justice Wadden suggests, it is not true that the “victim surcharge” is no big deal. But perhaps his poorly reasoned and unpersuasive decision is. One can hope that it is Justice Paciocco’s cogent ruling in Michael that will be followed in future cases.

H/t: Elizabeth LeReverend, via CanLII Connects.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota