Not Too Late

Back in February, I wrote about the Court of Québec’s judgment in R. v. Cloud, 2014 QCCQ 464, in which Justice Patrick Healy sharply criticized the “victim surcharge” which recent amendments to the Criminal Code require courts to impose in all criminal cases on top of any other sentence. Mr. Cloud, the accused, had not challenged the constitutionality of the surcharge, but Justice Healy was convinced of its arbitrariness and disproportionality, and decided to minimize its effects by imposing a nominal fine on Mr. Cloud, which resulted in the surcharge being calculated as a percentage of the fine (and thus a very small amount) rather than at 100$ per summary conviction offence and 200$ for an indictable offence. Since then, other judges in Québec have followed this approach.

The Crown ― whose lawyers in Ontario have described it as a judicial “insurrection” ― has appealed Mr. Cloud’s sentence and a number of others, seeking to have the full surcharge imposed on the offenders concerned. They, in turn, have asked the Québec Court of Appeal for leave to challenge the constitutionality of the “victim surcharge” on the basis that infringes sections 7 and 12 of the Charter. Last week, in R. v. Cloud, 2014 QCCA 1680, a split judgment from which Chief Justice Nicole Duval Hesler dissented, the Court denied leave, saying that the case did not meet the narrow criteria for raising a new (constitutional) issue for the first time on appeal. (Note that this is a somewhat different situation from that which arose in R. v. Mian, 2014 SCC 54, about which I blogged last week; there it was the Court of Appeal itself which had raised the new issue, whereas here it’s a party that seeks to do so.)

Generally speaking, a party cannot raise on appeal an issue that he or she failed to raise at fist instance. But courts of appeal have a discretionary power to make exceptions to that principle, in particular when a change in the state of the law changes after the trial decision is delivered, for example due to a declaration of unconstitutionality issued in a separate case. The test, as the majority judgment and the dissent agree is that there must be enough evidence in the file to allow the appellate court to rule on the new issue, and the failure to raise it at first instance cannot be the result of a strategic choice by the party that seeks to raise it on appeal. On the other hand, the appellate court must also be satisfied that not considering the new issue will not result in an injustice.

Justice Doyon, writing for himself and Justice Hilton, holds that the criteria for allowing the respondents to raise the issue of the “victim surcharge”‘s constitutionality are not satisfied. For one thing, he finds, the respondents made the deliberate decision not to raise the issue at trial, and must now live with the consequences of their choices; although they say their financial situation prevented them from arguing the constitutional point at first instance, there is no reason to believe that it has now changed. For another, the evidence in the record is not sufficient to dispose of the constitutional issue. The Crown argued that it would want to introduce evidence, including testimony, about the respondents’ financial situation and ability to pay the “victim surcharge,” as well as evidence establishing the benefits of the surcharge for the purposes of defending it under s. 1 of the Charter. Finally, there is no injustice in not allowing the respondents to raise an Ontario decision in which a provincial court judge proprio motu declared the “victim surcharge” unconstitutional.

The Chief Justice disagrees with Justice Doyon’s assessment. (I should note that I have worked for Justice Duval Hesler, as she then was, back when I was in law school, and have kept in touch with her; while I generally think the world of her and am, no doubt, biased, I have not discussed this case with her.) The Chief Justice points to the decision of the Ontario Court of Justice in R. v. Tinker, 2014 ONCJ 208, issued well after Justice Healy’s decision in Cloud, which declared the “victim surcharge” unconstitutional. She argues that there is enough evidence regarding the respondents’ financial situation, and that introducing new evidence regarding s. 1 of the Charter on appeal ― or indeed at the Supreme Court ― is not unheard of. The respondents, in her view, did not expressly renounce constitutional arguments at first instance, and the interests of justice require allowing them to raise them on appeal, because of a principle that “the Court shall not be compelled to apply the mandatory surcharge if its constitutionality is seriously challenged” (par. 49). Tinker, while not equivalent to a Supreme Court decision changing the law, supports the seriousness of the respondents’ constitutional challenge.

I believe that the Chief Justice is right, and indeed that there is more to say in support of her conclusion. For one thing, Tinker is no longer the only case in which the “victim surcharge” was found to be unconstitutional ― there is also R. v. Michael, 2014 ONCJ 360, about which I wrote here. (In fairness, yet another decision, R. v. Javier, 2014 ONCJ 361, which I criticized here, refused to follow Michael and upheld the “surcharge.”) For another, it bears noting that neither Tinker or Michael nor Javier (which, admittedly, did not involve a fully-fledged constitutional challenge) suggest that there is serious, or “voluminous” (as Justice Doyon suggests) evidence in support of the Crown’s claim that the surcharge can be justified under s. 1 of the Charter. Justice Paciocco’s reasons in Michael devote a single paragraph to s. 1. Perhaps he blithely ignored the Crown’s submissions on this point but, considering the rest of these reasons (which I described as “somewhat fastidious”), I find that difficult to believe.

In reality, the Crown’s approach to this application continues its record of persistent hypocrisy in the matter of the “victim surcharge.” In some cases, including in the Cloud appeal, as well as and to journalists, its lawyers argue that judges lack the power to circumvent or minimize the “surcharge” by imposing nominal fines. In others, such as Michael, they argue that they may, and indeed ought to, do so in order to avoid the constitutional issue. In the cases where the constitutionality of the “surcharge” was argued, they seem to have failed to introduce any evidence worth discussing to support their position, yet they rely on the need to introduce such evidence in order to avoid debating the constitutional issue at the Québec Court of Appeal. It’s too bad that the majority of the Court of Appeal fell for this trick. One can only hope that the panel that hears the appeal on the merits will be aware of what is going on, and will call the Crown out on it. For that, at least, it is not yet too late.

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.


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.


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.

The Bill Is Due

In yesterday’s post on R. v. Cloud, 2014 QCCQ 464, I bemoaned the lack of property protections in the Canadian Charter of Rights and Freedoms, arguing that, as Cloud demonstrated, it hurt the poor rather than the well-off. However, while property rights are not mentioned in the Charter, section 1 of the Canadian Bill of Rights provides that

It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms, namely,

(a) the right of the individual to … enjoyment of property, and the right not to be deprived thereof except by due process of law;

Unlike the Charter, the Bill of Rights only applies to federal law ― which, of course, includes the Criminal Code. Can it be used to challenge the “victim surcharge” which, as I argued yesterday, is an arbitrary taking of property, often from the poorest members of society and for the benefit of those better off than them? The short answer is, almost certainly no. There is a way of arguing that it should be, but I would not expect courts seriously to entertain such an argument. And yet, they would be wrong not to.

Unlike the Charter, which helped usher in substantial changes in Canadian law within years of its coming into force, the Bill of Rights has languished in relative obscurity. The Supreme Court never made much of it, holding in R. v. Burnshine[1975] 1 SCR 693 at 702 that

[t]he Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.

As cases such as Burnshine and Miller v. The Queen, [1977] 2 SCR 680, which rejected a challenge to the use of capital punishment on the basis that

[a]t the time when the Bill of Rights was enacted there did not exist and had never existed in Canada the right not to be deprived of life in the case of an individual who had been convicted of “murder punishable by death” by the duly recorded verdict of a properly instructed jury (704)

demonstrate, the courts’ approach to the Bill of Rights is strictly originalist. This is, of course, in contrast to their approach in constitutional cases, where originalism is (almost ritually) rejected and “large and liberal” interpretations prevail, and despite the Bill of Rights regularly being described a “quasi-constitutional” statute.

The most recent leading case dealing with the Bill of Rights is Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40. The claimants in in that case argued that the federal government’s failure to pay interest on pension money it administered for them and Parliament’s enactment of a statutory provision barring any claim for such interest were a violation of, among other things, their property rights protected by the Canadian Bill of Rights. In a unanimous judgment by Justice Major, the Supreme Court held that the requirement of “due process of law” for any deprivation of property in par. 1(a) of the Canadian Bill of Rights did not include any procedural rights (such as notice and hearing) prior to the enactment of a statute or in “the non-discretionary application of a law to incontestable facts” (par. 45). More important for my purposes here, however, is the Court’s treatment of the claim that “due process of law” had a substantive dimension which included protection against expropriation without compensation. Justice Major noted the extreme reluctance of Canadian courts to recognize “substantive due process” rights arising out of the Bill of Rights; he also observed, however, that in the context of s. 7 of the Charter, which uses the terms “fundamental justice” instead of the Bill of Rights‘ “due process of law,” the Court has found that, in the proper circumstances, guarantees of process or justice may confer substantive protections” (par. 50). Reverting to an originalist analysis, Justice Major concluded that, in any case, when the Canadian Bill of Rights was enacted, “it was undisputed, as it continues to be today, that Parliament had the right to expropriate property if it made its intention clear” (par. 52).

How does this apply to the “victim surcharge”? To argue that it is contrary even to the narrow protection for property rights recognized by the Supreme Court in Authorson, one would need to show that a principle of proportionality or non-arbitrariness in the deprivation of property was part of Canadian law prior to 1960. I haven’t done any relevant research, but I suspect that it would not be an easy demonstration. Authorson does, however, leave open the possibility of reading “substantive protections” into a “guarantee of process.” It is difficult to know whether Justice Major really meant what he said. Perhaps the possibility he suggested was a purely theoretical one. I have no doubt that courts would be reluctant to give it effect. A case involving the “victim surcharge” might be the best opportunity to persuade them to do so. It might help, too, that since Authorson, important American scholarship has undermined the justification of the fear of  a new “Lochner Era” of judicial assault on legislation intended to foster social justice and called into question its purely procedural understanding of “due process of law.” Still, this would be a high hurdle to overcome.

The most radical, and least likely to succeed, argument against the compatibility of the “victim surcharge” with the Canadian Bill of Rights would involve a challenge to the Supreme Court’s entire approach to its interpretation. The originalism which limits the scope of its protection to what existed in 1960 is inconsistent with the Court’s approach not only to constitutional and quasi-constitutional laws, but even to ordinary statutes. To be sure, the Bill of Rights “recognizes and declares” that the rights it protects “have existed and shall continue to exist.” But recognizing the continued existence of a right need not entail its “freezing” at the moment of recognition. A right does not change, does not become a different or new right, just because it comes to have a novel application. When the equality rights of same-sex couples were recognized, they were the same old equality rights that had existed previously and would continue to exist thereafter, only extended to a new group of people. When the Supreme Court recognized that freedom of religion prevented Parliament from enforcing religious observance, it did not create a new liberty ― it only gave further meaning to an old one. Of course, there are limits to this reasoning, but that does not invalidate it altogether. It is probably always a safer bet to assume that the Supreme Court will not change course. But it should. 

The Canadian Bill of Rights deserves better treatment than it has received at the Supreme Court’s hands. The “victim surcharge” shows that the Bill is due ― to hold the government to account for its greed at the expense of some of the most vulnerable members of society.

Greed Is Not Good

Many bad things have been said about the “victim surcharge” which the Criminal Code requires people found guilty of an offence to pay, and which recent amendments have made mandatory, depriving judges of any discretion to waive it, regardless of whether it represented a disproportionate punishment for a minor offence or would cause great hardship to a destitute person. In a well-publicized recent judgment in R. v. Cloud, 2014 QCCQ 464, Justice Healy reviews and endorses a number of criticisms. “As applicable to many … offenders, the surcharge” ― really, he points out, just a fine ―

would disturb reasonable and informed people because it is disproportionate ― having regard to the quantum, the inflexibility of its terms and the inherent arbitrariness in distinguishing between cases where a fine is or is not imposed or cases that proceed by summary-conviction procedure or indictment.  It is a blunt instrument that is far too blunt to achieve any valid penal purpose. (Par. 18; footnote omitted.)

Although it is purportedly meant to make offenders accountable to the people who suffer from their misdeeds,

[t]he surcharge is … contingent on the presence or absence of a fine or on the classification of offences [into indictable and summary-conviction offences]. This would appear to be arbitrary as a measure of the quotient of accountability of offenders. It is not apparent that a reliable and proportionate quotient of accountability can be derived from a percentage of a fine. Even less is it apparent that one-half, or double, the quotient of accountability can be assured by the classification of offences. This is obvious in the case of hybrid offences that require an election by the prosecution [to proceed by indictment or by way of summary conviction]. (Par. 26)

And although no constitutional challenge was before him, Justice Healy points out that the constitutionality of the surcharge might be questioned too, whether because it amounts in some cases to cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms, or because it contradicts the principle of individualization and proportionality in sentencing, which might be protected by s. 7 of the Charter.

On that last point, note that s. 7, which protects “the right to life, liberty and security of the person,” comes into play in a round-about way. The surcharge itself does not deprive anyone of life or liberty, and it is doubtful whether, even the case of an indigent person, the courts would find that a fine can amount to deprivation of the security of the person (though that’s certainly not impossible). Rather, s. 7 becomes involved because the non-payment of the surcharge can lead to imprisonment, and thus a deprivation of liberty.

Which brings me to the point I want to make in this post. One criticism of the “surcharge” that is missing from Justice Healy’s opinion and, so far as I can tell, from other public commentary too is that it is an unjustified deprivation of property. The right to property, of course, is conspicuously and deliberately missing from s. 7 of the Charter. I think that the “surcharge” demonstrates that its exclusion from the constitution is unfortunate, and that, contrary to conventional wisdom, it hurts the poor rather than the well-off.

That the “surcharge” is a government taking is quite clear. Although the Crown tried to argue in Cloud that, because the “surcharge”  finances a fund that helps crime victims, it is a form of restitution, Justice Healy’s explanation of the reasons for which this argument fails is unassailable. In addition to relying on statutory language, Justice Healy points out that

[t]he surcharge is not compensation for actual loss to an identified person or entity and it has nothing to do with any notion of restitutio in integrum as that concept is legally understood.  … Further, if the alternative to non-payment of the surcharge is participation in a fine-option programme or (where there is no such programme) imprisonment, it is nonsense to describe these mechanisms as a function of restitution. (Par. 40.)

I would only add that it is equally nonsensical to describe the “surcharge” as “restitution” when it is imposed on people sentenced for victim-less crimes, such as possession of drugs or firearms.

It is equally clear from Justice Healy’s reasons in Cloud that the “surcharge” hits the poorest and most marginalized members of society especially hard, both because they are more likely to get into trouble with the law and because they can least afford to pay it. As a general matter, if it is the case that offenders are, on average, poorer than the victims of crime (I do not know the numbers, but this seems a plausible assumption; Mr. Cloud’s case would certainly support it), then the “surcharge” effectively operates as a wealth transfer from the poor to the better-off. Of course, it is not the only government programme that operates in this way, and I suppose should not be unconstitutional for that reason alone. 

But it is, even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. As Justice Healy points out in a passage quoted above, the surcharge is arbitrary because the amount of the “surcharge” 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.

In its recent decision in Canada (Attorney General) v. Bedford2013 SCC 72 the unanimous Supreme Court explained that as a principle of fundamental justice enshrined in s. 7 of the Charter, non-arbitrariness is concerned with the existence of

a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. (Par. 111)

The “victim surcharge” is a flagrant violation of this principle. But, because s. 7 does not protect property rights, it can only be brought to bear on this iniquity through the back door. This is too bad. We accept that the government may not be cruel, or devious, or tyrannical. Why is it permissible for it to be greedy?