Monday, December 09, 2013

Harper government to establish special federal force to venture under bridges to collect debts?

Justice Minister "Helicopter Pete"

Judges defy order to impose Tories' victim-services surcharge

Sean Fine/Justice Writer
Monday, December 9, 2013

Judges in several provinces are rebelling against the Conservative government’s attempt to make all convicted criminals pay a surcharge to fund victim services.

The mandatory charge is a new flashpoint between the judiciary and the federal government. Two years ago, an Ontario Court judge opposed to The Truth in Sentencing Act – which ended two-for-one credit for pretrial detention – called on other judges to give shorter sentences to make up for harsh jailhouse conditions.

The victim-services fine has sparked another backlash in the judiciary, now that judges can no longer waive the “victim fine surcharge” of up to $200 for impoverished offenders.

In Ontario, British Columbia and Alberta, judges have either refused to order criminals to pay or have found creative ways around ordering the mandatory surcharge, such as giving an offender decades – even 99 years – to pay. Ontario Court Judge Stephen Hunter of Ottawa even ruled that the mandatory surcharge is unconstitutional, without being asked to do so by the defence. The Crown is appealing that ruling.

There are no hard numbers on how many judges are refusing to apply the new law, which requires either a 30-per-cent surcharge on any fine levied, or if no fine is set, a flat fee of $100 or $200, depending on the seriousness of the offence.

Ontario’s Ministry of the Attorney-General said it does not track victim-fine surcharges, and Associate Chief Justice Lise Maisonneuve of the Ontario Court would not provide an estimate.

But lawyers in several jurisdictions say the opposition is widespread.

In Kitchener, Ontario Court Justice Colin Westman is issuing $1 fines, resulting in a 30-cent surcharge, to any impoverished offender.

In an interview, he denounced the mandatory surcharge as a tax on “broken souls.”

“Can you imagine being a person who’s got mental illness, who lives under the local underpass, at the hospital or on a park bench, who eats at the soup kitchen, and you’re going to have them pay $100 because they had their day in court?” he asked.

He wondered if a “special federal force” will venture under bridges to collect the debts. (emphasis CyberSmokeBlog's)

“If you sat in a typical provincial courtroom and saw all the broken souls coming before us that came from non-existent homes, you could understand the problem,” he said.

Asked what right he has as a judge to skirt the law, he said, “We don’t have a right – that’s the problem.

“They took it away from us. They pay us one-quarter of a million dollars a year and they don’t trust us to assess a surcharge on those who can afford it.”

A justice department backgrounder says the law, titled the Increasing Offenders’ Accountability for Victims Act, will “ensure that the victim surcharge is applied in all cases without exception,” except where programs exist that allow offenders to do community service instead. The law took effect October 24.

Paloma Aguilar, Press Secretary to Justice Minister Peter MacKay, stood behind the extra financial penalty, saying the government is committed to giving victims of crime a stronger voice, and the surcharge will fund much-needed victims services.

Paul Lewandowski, an Ottawa criminal lawyer, represented a drug-addicted refugee claimant from Sierra Leone who pleaded guilty to stealing $9 of chocolate bars to resell, and who was sentenced to a little more than a week in jail.

Mr. Lewandowski said that while judges must apply Parliament’s laws, they need to ensure that a sentence is just and in proportion to the crime.

He called the mandatory nature of the fine “a giant placebo to placate victims’ rights groups.”

Anthony Moustacalis, president of the Ontario-based Criminal Lawyers Association, said that 55 per cent of accused offenders receive legal aid, and that the requirement for legal aid is annual earnings under $10,800, and a possible jail sentence.

A Toronto judge allowed an offender 99 years to pay, he said. An Alberta judge gave an offender no time to pay, sentenced that offender to a day in jail for defaulting, but made that jail time overlap with the time he was already serving.

In British Columbia, judges are allowing 10, 11 or even 50 years to pay the fine, Vancouver lawyer Eric Gottardi said.

“It certainly shows the level of frustration the judges have,” he said.

“It’s dangerous because this is the kind of thing the Conservatives have used to justify taking discretion out of the hands of judges.”

And then there was this .....


Judge invites constitutional challenge of victims fine surcharge

Andrew Seymour
Wednesday, November 27, 2013
Three weeks ago, Ontario Court Justice Heather Perkins-McVey volunteered to extend the time to pay the victim fine surcharge to five decades for an alcoholic who stole from the LCBO. (Photograph by: Jana Chytilova/Ottawa Citizen)

OTTAWA — A judge who gave a thief 50 years to pay his $100 victim fine surcharge told defence lawyers Wednesday they will now need to bring a constitutional challenge if they want more time to pay the controversial mandatory charge.

Three weeks ago, Ontario Court Justice Heather Perkins-McVey volunteered to extend the time to pay the victim fine surcharge to five decades for an alcoholic who stole from the LCBO, earning criticism from both Justice Minister Peter MacKay and the federal ombudsman for victims, Sue O’Sullivan.

But in one of the first cases to come before the Ottawa court since judges were informed last Friday of a 1999 Ontario order in council that required victim fine surcharges to be paid within 60 days, Perkins-McVey now said she couldn’t make an order to extend the time to pay unless there was a constitutional challenge to the new law.

Perkins-McVey said there were questions about whether the 1999 order in council would still apply since it didn’t contemplate the changes to the law that removed a judge’s discretion to waive the fine where it would cause undue hardship. However, she would need to first hear legal arguments before she could consider doing anything.

“I would consider any application to extend the time to pay a victim fine surcharge should that application come before me,” she said.

It turned out it wasn’t the best case to make a constitutional argument anyway.

Perkins-McVey ordered the 22-year-old former soldier to pay the fine for obstructing justice and breaching release conditions after hearing how he took home a $3,000-a-month pension from the Canadian military.

His rent was about $800, while the rest of the money was managed by his mother, who holds a power of attorney.

The soldier had been discharged as a result of his alcohol addiction and mental health issues.

He was before the court after ringing up bills of $140 and $200 at bars and then refusing to pay. Following one of his arrests, he gave police his brother’s name.

Perkins-McVey had initially contemplated giving the man — who was sentenced to 21 days in jail — a small fine that would have drastically reduced the amount of the fine, but changed her mind after inquiring about how much he received monthly.

“For many, many individuals who come before this court, $3,000 would be an exorbitant amount of money,” she said.

Perkins-McVey ordered the man pay a pair of $100 fines for two of his three offences that occurred after the fine became mandatory on October 24. The man, who is headed to a residential treatment program, now has 30 days to pay.

Crown prosecutor Paul Attia said the Crown’s position was that the man should have to pay the victim fine surcharge for offences that occurred after the fine became mandatory.

“We are here with a gentleman with a guaranteed income from the federal government,” Attia noted.

The victim fine surcharge was made mandatory after complaints from victims’ rights groups that judges were routinely waiving the fine without inquiring about an offender’s ability to pay.

The man’s lawyer, Meaghan Thomas, said outside of court that the victim fine surcharge will impose an “inappropriate financial hardship” on her client, who suffers from mental health issues. Thomas said the absence of judicial discretion in considering whether to impose the fine or not is an “affront to Canadian constitutional values,” but didn’t launch a constitutional challenge given her client ultimately had some ability to pay the fine.

“Given his income, he will be able to shoulder that hardship and pay the fine. But there are a great many others who will be entirely unable to pay the fine,” she said. “The new victim fine surcharge legislation increases the marginalization of individuals in the lowest socio-economic brackets.”

aseymour@ottawacitizen.com
twitter.com/andrew_seymour

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