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The federal government’s mandatory victim surcharge isn’t a “bad law” and must be imposed, an appeal court judge has ruled in the latest battle over the contentious fee intended to help victims of crime.
Ontario Superior Court Justice Bruce Glass of Cobourg ruled this week that the mandatory victim surcharge is a “far cry” from being a grossly disproportionate punishment that violates the charter rights of the destitute offenders who might have to pay it.
Glass found that even the poorest criminals should be able to pay the fee that amounts to 30 per cent of any fine or $100 or $200 per offence — if they are given enough time to pay and either save up slowly or pay it back in small instalments.
“If a person does not choose to set aside money or pay in instalments when given reasonable time to pay, the individual becomes the author of their own misfortune when they come to the end of the period given to pay the surcharge,” Glass wrote in his seven-page decision.
Glass’s decision overturned the ruling of an Ontario court judge that excused four offenders from paying the surcharge because it was unconstitutional. The judge who made the original ruling found the surcharge was a “broad brush punishment” that violated Charter rights intended to protect life, security and liberty because offenders could face jail if they didn’t pay.
One of the offenders is a legally blind recovering alcoholic with mental health issues who is left with $31 a month after her Canada Pension Plan money is put toward her rent.
Another man had $170 per month remaining from his Canada Pension and disability pension to pay for food, clothing, utilities and incidentals after his rent and medication were deducted.
Glass calculated that three of the four offenders who owed $200 in surcharges could save just $1.92 per week if they were given two years to pay their surcharges. The fourth offender, who owed $300, would need to save $2.88 a week, Glass found.
“From that perspective, this is not grossly disproportionate for any of the four defendants in this case before me nor for anyone in general,” wrote Glass.
The decision is the first from Ontario’s Superior Court to deal with the constitutionality of the surcharge itself and is binding case law on judges in the lower Ontario Court of Justice.
However, defence lawyers said it will do little to slow constitutional challenges to the law in Ottawa’s courthouse, which have mainly centred on a different section of the Charter that deals with cruel and unusual punishment.
Several judges in Ottawa who refused to apply the surcharge had, up until recently, relied on a separate decision of Ottawa Judge David Paciocco that found the surcharge to be a “roving punishment” that was cruel and unusual, but had to stop after the Ontario Superior Court ruled the practice improper.
Trevor Brown, president of the Defence Counsel Association of Ottawa, said the new decision makes no mention of Paciocco’s ruling and defence lawyers will continue citing Paciocco’s decision while bringing constitutional challenges to the law under that section of charter.
While Glass didn’t address Paciocco specifically, he did touch on the findings peripherally.
In his decision, Glass agreed with the provincial Crown attorney’s office that the surcharge was a consequence of a crime, much like an order requiring an offender to provide his DNA, and not a punishment.
Legal Aid Ontario lawyers who represented the four accused argued that the victim surcharge was for all intents and purposes a form of punishment akin to a fine. But Glass disagreed with the lawyers that because the surcharge flows from a criminal conviction it is part of an “overall sanction package” for breaking the law.
“It flows from the conviction for a crime, but it is not a sanction in its own right,” he wrote. “Rather, it is quite simply what the Crown has described it to be, which is a sum of money established to be a consequence of breaking the law.”
aseymour@ottawacitizen.com
Twitter.com/andrew_seymour
查看原文...
Ontario Superior Court Justice Bruce Glass of Cobourg ruled this week that the mandatory victim surcharge is a “far cry” from being a grossly disproportionate punishment that violates the charter rights of the destitute offenders who might have to pay it.
Glass found that even the poorest criminals should be able to pay the fee that amounts to 30 per cent of any fine or $100 or $200 per offence — if they are given enough time to pay and either save up slowly or pay it back in small instalments.
“If a person does not choose to set aside money or pay in instalments when given reasonable time to pay, the individual becomes the author of their own misfortune when they come to the end of the period given to pay the surcharge,” Glass wrote in his seven-page decision.
Glass’s decision overturned the ruling of an Ontario court judge that excused four offenders from paying the surcharge because it was unconstitutional. The judge who made the original ruling found the surcharge was a “broad brush punishment” that violated Charter rights intended to protect life, security and liberty because offenders could face jail if they didn’t pay.
One of the offenders is a legally blind recovering alcoholic with mental health issues who is left with $31 a month after her Canada Pension Plan money is put toward her rent.
Another man had $170 per month remaining from his Canada Pension and disability pension to pay for food, clothing, utilities and incidentals after his rent and medication were deducted.
Glass calculated that three of the four offenders who owed $200 in surcharges could save just $1.92 per week if they were given two years to pay their surcharges. The fourth offender, who owed $300, would need to save $2.88 a week, Glass found.
“From that perspective, this is not grossly disproportionate for any of the four defendants in this case before me nor for anyone in general,” wrote Glass.
The decision is the first from Ontario’s Superior Court to deal with the constitutionality of the surcharge itself and is binding case law on judges in the lower Ontario Court of Justice.
However, defence lawyers said it will do little to slow constitutional challenges to the law in Ottawa’s courthouse, which have mainly centred on a different section of the Charter that deals with cruel and unusual punishment.
Several judges in Ottawa who refused to apply the surcharge had, up until recently, relied on a separate decision of Ottawa Judge David Paciocco that found the surcharge to be a “roving punishment” that was cruel and unusual, but had to stop after the Ontario Superior Court ruled the practice improper.
Trevor Brown, president of the Defence Counsel Association of Ottawa, said the new decision makes no mention of Paciocco’s ruling and defence lawyers will continue citing Paciocco’s decision while bringing constitutional challenges to the law under that section of charter.
While Glass didn’t address Paciocco specifically, he did touch on the findings peripherally.
In his decision, Glass agreed with the provincial Crown attorney’s office that the surcharge was a consequence of a crime, much like an order requiring an offender to provide his DNA, and not a punishment.
Legal Aid Ontario lawyers who represented the four accused argued that the victim surcharge was for all intents and purposes a form of punishment akin to a fine. But Glass disagreed with the lawyers that because the surcharge flows from a criminal conviction it is part of an “overall sanction package” for breaking the law.
“It flows from the conviction for a crime, but it is not a sanction in its own right,” he wrote. “Rather, it is quite simply what the Crown has described it to be, which is a sum of money established to be a consequence of breaking the law.”
aseymour@ottawacitizen.com
Twitter.com/andrew_seymour
查看原文...
