Crown fires back at judges’ ‘troubling’ avoidance of victim fine surcharge
Crown attorney Dallas Mack outside the Elgin Street courthouse in Ottawa on Tuesday, June 26, 2012. Mack argued on March 7, 2014, that judges who refuse to impose the mandatory victim surcharge were acting illegally.
Photograph by: Mike Carroccetto , The Ottawa Citizen
OTTAWA — Judges who refused to impose the mandatory victim surcharge were acting illegally and their personal opinions on the controversial fee are “irrelevant and unhelpful,” according to the provincial Crown attorney’s office.
That was the position laid out by an Ottawa prosecutor in court documents filed Friday seeking to overturn four “troubling” decisions of Ottawa judges who either flat-out refused to apply the mandatory surcharge, found it to be an unconstitutional tax or gave an offender 60 years to pay the $100 charge.
In the cases under appeal, defence lawyers indicated their clients were too poor to pay the surcharge, which is now supposed to be applied for every conviction, regardless of an offender’s ability to pay.
The mandatory surcharge has been a flashpoint for open rebellion by judges across Ontario and Canada, who lost their judicial discretion on when to apply the fee when the law came into effect on Oct. 24.
Judges started coming up with creative sentences to avoid applying the surcharge, which included extending the time to pay to decades or applying $1 fines that reduced the surcharge to mere pennies.
The law — which doubled the amount of the surcharge to either $100 or $200 depending on the severity of the offence, or 30 per cent of any fine issued by a judge — was passed after victim rights advocates complained judges were waiving it routinely without assessing whether an offender could pay.
In the appeal documents filed Friday, the Crown argued those creative sentences cannot be tolerated and must be rejected.
“Whether simply refusing to impose the mandatory surcharge, improperly or unfairly striking it down or thwarting its application, the rulings are illegal, without jurisdiction and improper,” prosecutor Dallas Mack wrote in the Crown factum.
“If courts fails to respect and uphold the rule of law, they will lose the moral authority to impose it on others,” Mack added.
“With respect, the personal views and opinions of judges — which some have chosen to express through rulings and others through the media — are irrelevant and unhelpful.”
In the factum, Mack argued judicial independence — while important — isn’t infinite.
“It does not follow that it is without limits; more to the point, it does not provide that judges can simply do whatever they want,” he wrote.
In one of the cases under appeal, Ontario Court Justice Stephen Hunter abruptly ruled from the bench that the mandatory victim surcharge was a tax and unconstitutional.
In the court filing, Mack argued that Hunter was in no position to make the ruling the way he did, since it is not open to a judge to bring his own constitutional motion. Procedurally it was also unfair: in the case where Hunter ruled the law unconstitutional, he never gave the Crown an opportunity to make any legal argument.
Although not part of this appeal, a Montreal judge recently ruled that he believed the victim surcharge to be a fine, but the Crown’s office disputes that position as well.
The Crown argues the surcharge is neither a tax or a fine, but an ancillary order in the form of general restitution.
Mack argued that it is an “antiquated view” that the criminal justice system is solely focused on the accused. The victim surcharge is a “laudable objective” aimed at raising money for victim services, he wrote.
“Victims are real. The conscription of victims into the criminal justice system only serves to aggravate their victimization. It is reasonable, fair and appropriate that they are supported by that system,” Mack argued.
A date has yet to be set for the appeals to be heard.
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