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This week the Canadian Civil Liberties Association will be at the Supreme Court of Canada to argue that a mandatory victim surcharge, imposed on all “offenders,” is a cruel and unusual punishment that should be struck down by the Court.

The victim surcharge requires individuals to pay a financial sum — over and above any fines that are a part of their sentence — if they are found to be guilty of a criminal offence. Failure to pay the surcharge can be grounds for imprisonment. In 2013, the federal government removed judges’ discretion to waive the surcharge in certain circumstances. At issue in the cases before the Supreme Court this week (Tinker et al v Her Majesty the Queen and Boudreault v Her Majesty the Queen) is whether this removal of discretion was constitutional.

Imprisoning the poor for being poor is the populist resurrection of the barbaric debtor’s prison pilloried by Charles Dickens. Mr. Justice Binnie put it this way:

Debtors’ prison for impoverished people is a Dickensian concept that in civilized countries has largely been abolished.  Imprisonment for civil debt was abolished in Ontario by the end of the 19th century.  In its 1996 sentencing reforms, Parliament decreed that jail should be reserved for those whose conduct deserves to put them there.  Here, the trial judge thought a fit sentence would be a suspended sentence with probation, but this was not possible under the Act.  Yet debtors’ prison “in the community”, which is what a conditional sentence amounts to, is repugnant in the case of an individual who is undeserving of jail yet who simply cannot pay.  As will be seen, the purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment. (R. v. Wu, [2003] 3 SCR 530).

As Doherty JA wrote in that case on appeal:  “Economic imprisonment whether in jail or in the community is offensive to the present provisions of the Criminal Code relating to fines.” (R. v. Wu) at para. 40).

By removing judicial discretion to waive the surcharge for indigent offenders, the mandatory surcharge punishes and discriminates against the indigent. A person who is genuinely unable to pay the surcharge must face the the persistent spectre of incarceration. The stress associated with non-payment is compounded by a host of additional legal and personal consequences which an indigent individual will never realistically hope to escape. This includes the stigma of being indebted to society but being unable to repay the debt and take even the first step down the road to rehabilitation. It also includes an individual’s ineligibility to obtain a pardon and the associated effects of this ineligibility on one’s prospects for employment, rehabilitation, and reintegration into society.

A mandatory financial punishment that is imposed regardless of financial circumstance has no place in a fair and just criminal justice system. Criminal law must be flexible enough to allow the judiciary to fashion appropriate and individualized responses to criminal conduct and to avoid imposing unnecessarily cruel and harsh sentences on individuals living in poverty.

Counsel in this case is Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.

For a webcast of the hearings, click here.

For CCLA’s intervenor factum in the case, click here.

About the Canadian Civil Liberties Association

The CCLA is an independent, non-profit organization with supporters from across the country. Founded in 1964, the CCLA is a national human rights organization committed to defending the rights, dignity, safety, and freedoms of all people in Canada.

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