Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 8 29 T he Supreme Court of Canada will hear arguments this spring on the appropriate punishment for a number of petty offenders living on fixed incomes, including a 58-year-old man with heart disease and a 56-year-old woman who is a legally blind, recovering alcoholic with a bi-polar disorder. Are the normal sanctions imposed by the trial judge sufficient or should these individuals, barely able to pay their monthly expenses, also be required to pay financial penalties for their offences? The court will jointly hear appeals from rulings by the Quebec and Ontario appeal courts on whether the imposition of mandatory victim fine surcharges for every criminal offence are cruel and unusual punish- ment under the Charter. The provisions, which require fines of $100 for every summary conviction offence and $200 per indictable offence such as murder, attracted controversy immediately after they were enacted five years ago. Provincial court judges tried to find ways to avoid imposing the fines on indigent defendants who usually had mental health or addiction issues and were unlikely ever to be able to pay. "It is a cruelty in some measure to tell an offender that they must discharge an impossible sentence before their debt is expunged," wrote then-Ontario provincial court Justice David Paciocco in his 2014 decision in R. v. Michael, where he found that the mandatory fines were a breach of the Charter (Paciocco was elevated last year to the Court of Appeal). The critics of these provisions included the newly elected Liberal government of Justin Trudeau. In the fall of 2016, Justice Minister Jody Wilson-Raybould introduced a bill to return discretion to trial judges on whether to impose the fines. That bill was never moved forward by the Liberals even as litigation over whether it was constitutional moved forward in Ontario and Quebec. Both provincial appeal courts concluded that the provisions did not violate the Charter — unanimously in Ontario, but with a dissent in Quebec. The Public Prosecution Service of Canada was an intervener in both provincial appeal courts, supporting the argument that the existing leg- islation was valid and complied with the Charter. Late last fall, after the Supreme Court of Canada granted leave, the federal government suddenly withdrew as a party and will not be participating in the hearing this spring. For legal organizations that assist disadvantaged individuals, the actions of the Liberal government are puzzling. "It is not that easy to show that the surcharge is unconstitutional. That is why it is so important for the legislation to come in," says Jonathan Rudin, program director of the Aboriginal Legal Services clinic in Toronto, which is an intervener in the upcoming Supreme Court hearing. "If you are unable to pay, it does noth- ing to support victims," Rudin adds. In fact, according to data released by the Ontario Ministry of the Attor- ney General, more than 90 per cent of its annual revenue from victim fine surcharges comes from provincial offences, such as speeding tickets, not from those convicted under the Criminal Code. The night of his election victory, Trudeau promised a change in the way his party would govern. The sentiment was repeated in the mandate letters sent to cabinet ministers a few weeks later in the fall of 2015, which were released to the public. One of the most ambitious of these letters was the one directed to Wilson-Raybould. "Canadians do not expect us to be perfect — they expect us to be honest, open, and sincere in our efforts to serve the public interest. Our platform guides our government. Over the course of our four-year man- MATTHEW BILLINGTON

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