The Supreme Court of Canada is seen in Ottawa on Oct. 11. The Yukon Legal Services Society served as an intervener on a Supreme Court of Canada case that ultimately found mandatory victim surcharges were unconstitutional. (Justin Tang/CP file)

Yukon Legal Aid lawyers applaud elimination of mandatory victim surcharges

A recent Supreme Court of Canada decision found the practice was unconstitutional

The Supreme Court of Canada has ruled that imposing mandatory victim fine surcharges on offenders is unconstitutional, a finding applauded by two lawyers who represented the Yukon Legal Services Society (YLSS) as an intervener in the case.

In a 7-2 decision released Dec. 14, the country’s highest court found that the practice of requiring offenders pay a 30 per cent surcharge on fines imposed by the courts, or tacking on a minimum $100 to $200 surcharge for every conviction in cases where there was no court-imposed fine, violated the Canadian Charter of Rights and Freedoms.

Although judges could impose higher surcharges than the ones laid out in the Criminal Code, they could not lower or waive them completely, Justice Sheilah Martin noted in her judgement, which was concurred by six other judges.

That created a “deeply disproportionate effects for those who are the most impoverished among us,” Martin wrote, and “a de facto indefinite criminal sanction” for some.

“Judges are forced to impose a one-size-fits-all punishment which does not take into account the individual’s ability to pay,” she wrote, noting elsewhere that offenders could be put in custody for defaulting on the fines or would have to explain in court why they couldn’t pay.

“In this context, the resulting indeterminate punishment results in a grossly disproportionate public shaming of disadvantaged offenders. It is what most Canadians would call an abhorrent and intolerable punishment. Put simply, in our free and democratic society, it is cruel and it is unusual.”

The court ordered the section of the Criminal Code sanctioning the practice to be invalidated immediately.

The decision was a consolidation of four separate appeals which had all questioned the validity of victim surcharges.

YLSS, also referred to as Yukon Legal Aid, acted as an intervener on two of the four cases, with Ottawa-based lawyer Andrew Stobo Sniderman and the Tutshi Law Centre’s Vincent Larochelle acting as co-counsel.

In separate interviews Dec. 20, Stobo Sniderman and Larochelle both said they were pleased with the decision, noting that the negative impacts of mandatory victim surcharges were especially apparent in jurisdictions like the Yukon.

One of YLSS’s arguments, which Martin later quoted in her judgement decision, was that while the intent of mandatory surcharges was presumably to support victims of crime, the surcharges were imposed even on “victimless” convictions — for example, violating bail conditions.

“One thing that we do see very often here in the Yukon is, individuals who are in the justice system suffer from a form of addiction, either alcohol, drugs or something else and they get put on conditions not to drink or not to consume drugs or alcohol, and sure enough, they end up breaching,” Larochelle said.

While an offender may have just committed one “substantive” crime, while out on bail, they could begin racking up breach convictions, sometimes several at once — for example, getting drunk at a bar could violate conditions to adhere to a curfew, not enter an establishment that sells alcohol, and to not consume drugs or alcohol.

Each individual breach would have a mandatory surcharge attached to it.

“And so (offenders) ultimately make it to their sentencing proceedings where they have 20, 30 breach charges,” Larochelle said, “and technically, they could be liable for thousands of dollars of victim fine surcharges even though it’s just breaches and there are no victims associated to the crime.”

Stobo Sniderman described that kind of situation as “absurd,” but noted that, with the rate of administrative justice offences five times higher in the Yukon than the rest of the country, it was one that played out over and over again in the territory’s courts.

“I think there’s this idea that harsh, inflexible laws are the best way to teach criminals a lesson and deter crime, and the reality is laws like that and this victim surcharge law … are often counterproductive,” he said.

“And I think the contribution of an intervener like Yukon Legal Services Society is that they could say, ‘Look, on the ground, this doesn’t work.’ It may sound good in a political campaign to say that you’re going to make criminals pay victims, but the reality of it is that it’s counterproductive in many places and especially so in a territory like the Yukon.”

In an email, Yukon Department of Justice spokesperson Tyler Plaunt wrote that the department is currently reviewing the decision and officials have been “tasked with doing an analysis of the decision’s potential impacts on Yukoners and the justice system here in the territory.”

The work is “just starting,” he wrote, and the department is keeping an eye on the progress of Bill C-75, a federal piece of legislation that, among other justice system amendments, had planned to do away with mandatory victim fine surcharges anyway.

Contact Jackie Hong at jackie.hong@yukon-news.com

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