Peter MacKay crushes fly with victims’ rights hammer
NationalPost.com – Full Comment
17/12/13. Kelly McParland
For true blue law and order enthusiasts, Justice Minister’s Peter MacKay’s power struggle with recalcitrant judges is just what the Conservative doctor ordered.
Mr. MacKay, a one-time prosecutor himself, is demanding the judges abide with a toughened-up Tory law requiring convicted offenders to pay a “surcharge” to be used in aid of victims of crime. The money doesn’t go straight to the victim of the crime, but is collected by the province or territory and used to finance victim-assistance programs.
A number of judges have been resisting the rules, arguing they are unfair, arbitrary, lacking in compassion or proportion to the crime committed. Reports indicate they’ve found innovative ways to evade the law, either setting fines at derisory levels (ensuring the surcharge will be even less) or allowing extended payback periods that stretch into decades. Some just ignore it.
Their resistance prompted a rebuke from Mr. MacKay, who notes quite rightly that it’s Parliament’s job to make laws, and the courts’ job to observe them.
“As minister of justice, I’ve got nothing but respect for our judiciary and I also understand implicitly the importance of not only judicial discretion but judicial independence. Having said that, I also have a high degree of respect for Parliament and the institution of those who are democratically elected to pass laws,” he said.
Here here. Across the country, fists will be pounding tables as Canadians who firmly support the government’s tough-on-crime agenda find another reason to denounce lawbreakers and the namby-pampy courts that cater to them at the expense of law-abiding citizens. This is the sort of situation the government has been yearning for over recent months, as it took its lumps over the Senate scandal and other assorted missteps. Any time it can shift the discussion to crime and punishment, it feels on firmer ground.
Mr. MacKay has an excellent point to make. For too long, victims have felt disrespected by the courts, their very real concerns and suffering minimized in deference to judicial eagerness to display compassion to those who broke the law and caused the pain. Although there are victims rights laws in force across the country, advocates have long complained they achieve little and continue to leave victims paying a higher price than offenders.
The situation is more complex than it may seem at first glance. Consultations into Conservative plans to create a Victims Bill of Rights found that advocacy groups were often divided over the best approach. Sue O’Sullivan, the federal ombudsman for crime victims, submitted a list of 30 recommendations, allowing for a range of remedies to deal with the varying circumstances that arise.
The Harper government likes things simple and straightforward, however, and recently proceeded with a plan to double the surcharge — which was first introduced in 1989 — and eliminate a provision allowing judges to waive payment when it could be shown to cause undue hardship. Mr. MacKay insists the charge, at 30% of any fine, or fixed fees of $100 to $200 in other cases — is not onerous or unreasonable, and that measures exist to allow the money to be paid over time, or via provincial fine-option programs, though not all provinces have such programs.
“Simply waiving it out of hand — I’m telling you, I used to see it routinely, the judge would say, ‘well the person is going off to jail so they have no means to pay and I’m going to waive the victim fine surcharge.’ Those days are over,” he said.
As has frequently been the case with this government, they appear to have taken a valid cause and overreached in their eagerness to please a friendly demographic. It is fully justified to demand that offenders be required to make restitution for their acts wherever possible, even if that means some hardship. That’s the price of breaking laws. Judges don’t like having their discretionary powers questioned, and no doubt some of the resistance to the tougher rules results from wounded egos.
Nonetheless, the government might have learned from its bruising battle to introduce mandatory minimums that the simplest solution isn’t always the best, or smartest. In handcuffing judges, the Tories eliminated options for leeway in even the most deserving of cases. A homeless youth convicted of a minor offence while struggling to get by faces the same merciless treatment as a hardened drug lord or violent biker. Everyone is lumped into the same black or white universe: you’re good or you’re bad, there is no such thing as grey.
Mr. MacKay is right to stand up for victims, and the Conservatives should continue to do all they can to rebalance the scales of justice as they pertain to those who commit crimes and those who suffer them. But they would do well to quit using hammers to kill flies. “Tough on crime” doesn’t require crushing those who would be better served with a bit of mercy, and punishment out of proportion to offence does little to aid victims.
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