Canadian criminal justice meets ghost of Christmas past

Posted on December 23, 2014 in Equality Policy Context – Opinion/Commentary – Federal government’s mandatory victim surcharge punishes poor people who are convicted of crimes but don’t have the money to pay.
Dec 22 2014.   By: Catherine Latimer

Equal justice for all is the most basic principle of a fair legal system. But for the poor who can’t afford to hire good lawyers, raise bail or pay for fines imposed as punishment, the criminal justice system is anything but equal. That inequality has now been made even worse by the imposition of mandatory victim surcharges as an additional fine on people convicted of crimes.

Until October 2013, judges were able to waive victim surcharges that would result in hardship, but then the government took away this necessary discretion to take poverty into account. Judges have tried to skirt the devastating impact of this change by imposing nominal fines on the poor, by giving them many years to pay or by refusing to impose the surcharges at all because they did not comply with Charter rights. However, the essential principle of justice, that the punishment of crime be proportional to the responsibility of the offender and the seriousness of the offence, is unavoidably lost in the way the victim surcharges operate on the poor.

The constitutionality of victim surcharges is once again before the courts in the case of Tim McCooeye, a homeless and hearing-impaired addict who panhandles with a sign and a smile on the streets of Ottawa. Since the victim surcharge has some into effect, he has accumulated more fines than his meagre $600-a-month disability pension can ever cover. A decision on his case is expected in February.

Some Scandinavian countries have addressed the problem of poverty and criminal fines by using a system of “day fines,” according to which the amount of the fine is adjusted to how many days’ income it would represent for the criminal. This introduces a measure of equal justice into a society where variations in income and wealth can be extreme, ensuring that the impact of the fine is equal for each person punished. The United Kingdom responds to this problem by allowing judges discretion not to impose fines that would be excessive for the person affected.

Even in Canada, there is judicial discretion in imposing fines, where capacity to pay must be considered, but not for the victim surcharges. In theory, fines could be paid by offenders working in specially designed provincial programs to pay off what they owe, but in practice, not all provinces or communities have this option. Also, some offenders with disabilities may not be able to work.

If offenders cannot pay their fines, at least they cannot legally be imprisoned for that inability. But their fine will still be owing, and this will prevent the offender from being able to accrue crime-free time to count toward suspension of the criminal record. This will then ensure that while the poor will continue to suffer discrimination when seeking employment because they cannot discharge their fine, the rich offender will not.

Some impoverished offenders will have to commit crimes to collect the money needed to pay their fines. Drug-addicted criminals will have a hard time proving that they really cannot afford to pay, since the money they must spend on their addiction will be interpreted as funds sufficient to pay the fines. There is no protection from jail for a perceived unwillingness to pay.

In Charles Dickens’ A Christmas Carol, Scrooge rhetorically asks, when pressed for a charitable donation, “Are there no prisons? Are there no workhouses?” highlighting the connection in Victorian England between prisons, debt and poverty. After more than 170 years of progress in removing the link between the criminal justice system and poverty, Canada should not take this major step backward in imposing a special system of fines which particularly harms the poor.

Catherine Latimer is executive director of the John Howard Society of Canada.

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