Peter MacKay acting as ‘bully’ on victim fine surcharges, judge says; Judges defy order to impose Tories’ victim-services surcharge

Peter MacKay acting as ‘bully’ on victim fine surcharges, judge says by Andrew Seymour, December 17, 2013, Ottawa Citizen
An Ontario Court judge said Justice Minister Peter MacKay’s suggestion that poor criminals could sell their belongings to pay the government’s mandatory victim fine surcharge is disappointing, and suggested the minister spend some time in a courtroom. “You have to understand these people have nothing. That’s the tragedy,” said Waterloo region Ontario Court Justice Colin Westman, one of many judges in Ontario who have found ways to minimize the mandatory penalty by doling out small fines that reduce the victim surcharge to as little as 30 cents. “I’m not trying to be a smart-alec here but I think someone has to remind the minister there are broken people here who don’t have anything to give. It’s a bully mentality. It’s kicking people while they are down,” said Westman Tuesday. “The people we are dealing with, believe me, a high portion of them are just broken souls.”

Westman was reacting to a Citizen interview with MacKay Monday, where the justice minister suggested that the government’s victim fine surcharge wasn’t disproportionate or cruel and unusual punishment. MacKay said poor offenders could pay the fine back over time or consider selling some of their belongings to pay off the debt. The mandatory fine ranges from $100-200 depending on the severity of the offence or 30 per cent of any monetary fine. The 70-year-old Westman, who has been a judge for nearly 24 years, said he respects MacKay’s opinion, “but he hasn’t seen what I’ve seen.”

Many poor offenders are victims themselves of psychological, physical or sexual abuse, mental illness and poverty, he said. To speak of a $200 or $300 fine as if it was nothing is “disgusting,” said Westman. “I think he’s a good man and he has a policy and this is the policy he has for whatever reason, but you know when you say things like that, that’s pretty mean-spirited,” said Westman. “Why doesn’t he come in a court and spend a day in a plea court where he sees the broken people and then ask himself whether the program he’s implemented makes sense.” To date, Westman has been the only judge in the province so far to give media interviews about a mandatory surcharge he calls “an arbitrary fine set by someone sitting in Ottawa.”

“It’s an opinion based on my experience,” Westman said of his opposition. “We don’t do it just to be jerks. We do it because we are looking at someone who can’t pay. It’s not rocket science.” Westman said he is speaking out for those “who can’t speak for themselves.” Westman added he has tremendous empathy for victims, but “the accused is a human being too.”

“We also owe justice, not only to the victim, but the justice system is also based on doing justice to the accused. Retribution is appropriate. Revenge is not,” he said. Westman was not alone in his criticism of MacKay’s comments Tuesday.

Catherine Latimer, executive director of the John Howard Society, suggested it would be interesting if MacKay tried living on a disability pension for a few months. “Many of the people who get in conflict with the law don’t have much in terms of their personal possessions. They are pretty reliant on charitable donations,” said Latimer. “For some of the more marginalized people, they don’t have possessions to sell. Nobody is going to want to buy their coat.”

“I think it’s out of touch with reality,” added Bryonie Baxter, executive director of the Elizabeth Fry Society. “The reality for most of our clients is they have no belongings worth selling,” she said. “I really don’t know what he imagines they could sell. They don’t have cars and houses.” Latimer said the John Howard Society opposed the mandatory victim fine surcharge at a parliamentary committee, arguing it is creating significant hardship for people who simply can’t afford to pay. Latimer said she doesn’t believe anyone thought the consequences of the law through. “It’s a mess, quite frankly,” Latimer said of the current situation. “It’s very unwise to take a marginalized person who has no visible means of support and may well be a sex trade worker or something like that and tell them to come up with money.”

A spokesman for MacKay said the minister stands by his comments Tuesday. “Our government remains steadfast in our commitment to giving victims a more effective voice in the justice system — and this surcharge is a part of that,” Paloma Aguilar wrote in an email. Emmett Macfarlane, an assistant professor of political science at the University of Waterloo, said there may be an element of “callousness” to some of MacKay’s rhetoric, but sitting judges shouldn’t be commenting. “It’s not for a judge in this country to respond to that,” said Macfarlane. “For the most part it is traditionally viewed as not proper for a judge to get involved in politics in this way.” Whether the mandatory victim fine surcharge violates a person’s Charter rights is an “open question,” Macfarlane said. Until it is decided, judges should follow the law. “Not liking the policy and having this kind of gut, moral reaction and then claiming to be upholding justice or the rule of a law is actually a distortion of what those principles are and is really a flagrant violation of the judges role,” he said. “It is not up to a judge to determine which laws they apply and which ones they do not. That’s a political decision, it’s a policy debate that Justice Westman is involving himself in and I think it is highly inappropriate.”

Westman said he understands the criticism, “but there are things that come along in life that you just have to stand up for.”

“I feel this is so fundamentally wrong,” said Westman. “It’s not about Justice Minister MacKay. It’s about justice in the courtroom.”

But Westman conceded the issue also has to do with the removal of judicial discretion and independence.

“Did they show respect for us when they took away that discretion?” asked Westman.

“What is behind all that, he didn’t like what we were doing? We’re the judges, trust us. I don’t know a judge who doesn’t want to do justice in the courtroom. Trust our judgment, you’ve hired us to do that. We’re capable apparently of determining whether a person is guilty or innocent of anything in the provincial court right up to manslaughter and we’re capable in using our discretion imposing sentences from suspended sentences to life imprisonment,” said Westman.

“Respect goes both ways.” [Emphasis added]

Judges showing contempt by not imposing victim fine, Justice Minister says by Sean Fine, December 16, 2013, The Globe and Mail
Justice Minister Peter MacKay is fighting back against an emerging judicial revolt, accusing judges of showing contempt for the law by refusing to apply a mandatory financial penalty to convicted criminals. “Judges cannot ignore the role of the Crown in passing legislation in our democratically elected Parliament of Canada,” Mr. MacKay said in an interview. “Therefore, they are there like everybody else to respect the law, not flout it.” He said that when he was a prosecutor in Nova Scotia, judges frequently used their discretion to ignore the financial penalty they were supposed to impose on offenders. “Listen, I stood in front of many judges in my day and, without any consideration whatsoever of the victim or truly delving into the circumstances of the then-convicted criminal, judges would routinely waive the victim fine surcharge.” That surcharge is now mandatory, and judges in several provinces have denounced, evaded or ignored it. The victim fine surcharge is a penalty of $100 for each summary offence and $200 for each indictable offence. That surcharge is not levied if a judge orders a fine instead – plus a government-ordered 30 per cent on top – to make the offender pay for victims services.

Judges have made that fine as low as $1, or given offenders decades to pay the surcharge, or in at least one case ruled the surcharge an unconstitutional tax. A Kitchener judge has done newspaper and television interviews and called the surcharge “bizarre,” lacking in compassion and running afoul of Parliament’s own sentencing law of proportionality. The Crown is appealing at least three cases in which Ontario judges have refused to order the surcharge, which could ultimately mean that an appeal court will read the riot act to recalcitrant judges – or that they will be given permission to use the discretion they already claim to have. The rare confrontation between the judiciary and Parliament is a test of the limits of judicial independence. Mr. MacKay could file a complaint with the Ontario Judicial Council, and a group of judges, lawyers and lay people would rule on the defiant judges’ behaviour. “If I really felt a judge was flouting the law, I would file a formal complaint with the judicial council,” Ian Holloway, the law dean at the Unviersity of Calgary, said in an interview. Mr. MacKay appears intent on avoiding that kind of escalation of the dispute. He suggested that appeal courts, rather than his government, will keep the judges in line. “There are appeals under way. We believe that judges have to uphold the law and this is the law. The victim fine surcharge is part of the sentence imposed on the offender.” He disagreed with legal observers who say the judges are using the wiggle room they have been able to find in the law. “I don’t think there is wiggle room. They’ve been wiggling.” … Mr. MacKay praised Ontario Court Judge Kevin Phillips, who criticized the judges who refuse to apply the surcharge. “He spoke in very eloquent terms about the importance of victim fine surcharges.” [Emphasis added]

Judges defy order to impose Tories’ victim-services surcharge by Sean Fine, December 9, 2013, The Globe and Mail
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.

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.”

[What fine and surcharge will Harper government politicians pay for deregulating the railway, frac, and oil and gas industry when explosions and cancers kill people?  What fine and surcharge will criminal CEO’s pay?  How much time will they spend in jail?]

“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. “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 Oct. 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. [Emphasis added]

[Refer also to:

It appears Harper government trying to attack Canada’s Constitution the back way ]

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