Making the victim surcharge mandatory is unfair
In Victor Hugo’s 1862 novel Les Misérables, the starving protagonist is imprisoned for stealing a loaf of bread. The story has since become a classic due, in part, to its poignant portrayal of a misguided justice system that essentially criminalizes poverty.
It would be nice to think of such a justice system as purely the stuff of fiction, but the same concerns are reflected in the growing tensions between Canadian judges and the Conservative government.
The tensions have to do with the victim surcharge, a supplementary payment exacted from offenders at sentencing in addition to fines, jail time or other penalties. The money is intended to fund services for victims of crime.
The Conservatives recently made two significant changes to the way the surcharge works. First, they increased it to $100 or $200 depending on the nature of the offence, or 30 per cent of any fine imposed. More controversially - and with the support of the New Democratic Party - they eliminated the possibility of judges waiving the surcharge when paying it would constitute “undue hardship” for the offender.
As such, if Hugo’s Jean Valjean were sentenced today in a Canadian court, the judge would have no choice but to impose such a payment. The problem, of course, is that if Valjean could afford to pay, he would likely not have stolen the bread in the first place.
In some provinces, an offender who cannot afford the surcharge may work off the debt. In others, the consequence of nonpayment can be jail. Offenders with means, on the other hand, simply swipe their credit cards. The arbitrariness and unfairness are glaring.
Indeed, while requiring offenders to make restitution is a valid initiative, the government’s approach - which judges, experts, and even some victims’ groups have called unfair, arbitrary and cruel - will end up creating new victims while not compensating existing ones.
Regrettably, it is not only fictional characters facing injustice in Canadian courts. The homeless Ottawa teenager and drug-addicted refugee from Sierra Leone, who both recently confronted the prospect of a surcharge they could not afford, are all too real.
In these cases and an increasing number of others, judges have either refused to impose the surcharge or found creative ways around it, such as allowing decades for payment. Justice Minister Peter MacKay has accused these judges of flouting the law, and he has said that offenders who cannot pay should “sell a small amount of property” to raise the funds.
These comments suggest an alarming lack of understanding about the true circumstances of impoverished Canadians who resort to illegal acts. Does the minister really believe that there are homeless people toting hundreds of dollars’ worth of merchandise around Canada’s city streets?
And when poor people commit offences for subsistence or because of a drug addiction, does he really believe that our communities are best served by stripping these Canadians of any meagre possessions they have left?
Minister MacKay has accused me of wanting to take money from victims and give it to criminals. However, the fact is that the victim surcharge is a very poor way of funding victims’ services. While I certainly agree that offenders with the means to pay the surcharge ought to do so, the primary source of money for victims’ services should be reliable, direct government funding.
In fact, a mandatory surcharge would likely be counter-productive in this regard, as the funds spent litigating its constitutionality, or incarcerating offenders who cannot pay, far outweigh whatever contributions such offenders would otherwise make.
Ultimately, just as Hugo’s France did not benefit by imprisoning a man who stole bread for subsistence, there is nothing for Canada to gain by demanding hundreds of dollars each from impoverished offenders who simply do not have the money.
The time, energy, and financial resources being allocated to the burgeoning showdown between the government and the judiciary - a showdown of the government’s making - would be much better spent reducing poverty, treating mental illness and addiction, and actually helping victims of crime.
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It would be nice to think of such a justice system as purely the stuff of fiction, but the same concerns are reflected in the growing tensions between Canadian judges and the Conservative government.
The tensions have to do with the victim surcharge, a supplementary payment exacted from offenders at sentencing in addition to fines, jail time or other penalties. The money is intended to fund services for victims of crime.
The Conservatives recently made two significant changes to the way the surcharge works. First, they increased it to $100 or $200 depending on the nature of the offence, or 30 per cent of any fine imposed. More controversially - and with the support of the New Democratic Party - they eliminated the possibility of judges waiving the surcharge when paying it would constitute “undue hardship” for the offender.
As such, if Hugo’s Jean Valjean were sentenced today in a Canadian court, the judge would have no choice but to impose such a payment. The problem, of course, is that if Valjean could afford to pay, he would likely not have stolen the bread in the first place.
In some provinces, an offender who cannot afford the surcharge may work off the debt. In others, the consequence of nonpayment can be jail. Offenders with means, on the other hand, simply swipe their credit cards. The arbitrariness and unfairness are glaring.
Indeed, while requiring offenders to make restitution is a valid initiative, the government’s approach - which judges, experts, and even some victims’ groups have called unfair, arbitrary and cruel - will end up creating new victims while not compensating existing ones.
Regrettably, it is not only fictional characters facing injustice in Canadian courts. The homeless Ottawa teenager and drug-addicted refugee from Sierra Leone, who both recently confronted the prospect of a surcharge they could not afford, are all too real.
In these cases and an increasing number of others, judges have either refused to impose the surcharge or found creative ways around it, such as allowing decades for payment. Justice Minister Peter MacKay has accused these judges of flouting the law, and he has said that offenders who cannot pay should “sell a small amount of property” to raise the funds.
These comments suggest an alarming lack of understanding about the true circumstances of impoverished Canadians who resort to illegal acts. Does the minister really believe that there are homeless people toting hundreds of dollars’ worth of merchandise around Canada’s city streets?
And when poor people commit offences for subsistence or because of a drug addiction, does he really believe that our communities are best served by stripping these Canadians of any meagre possessions they have left?
Minister MacKay has accused me of wanting to take money from victims and give it to criminals. However, the fact is that the victim surcharge is a very poor way of funding victims’ services. While I certainly agree that offenders with the means to pay the surcharge ought to do so, the primary source of money for victims’ services should be reliable, direct government funding.
In fact, a mandatory surcharge would likely be counter-productive in this regard, as the funds spent litigating its constitutionality, or incarcerating offenders who cannot pay, far outweigh whatever contributions such offenders would otherwise make.
Ultimately, just as Hugo’s France did not benefit by imprisoning a man who stole bread for subsistence, there is nothing for Canada to gain by demanding hundreds of dollars each from impoverished offenders who simply do not have the money.
The time, energy, and financial resources being allocated to the burgeoning showdown between the government and the judiciary - a showdown of the government’s making - would be much better spent reducing poverty, treating mental illness and addiction, and actually helping victims of crime.
Source