WHAMMY! Supreme Court of Canada Strikes Down Canada’s Ugliest Populist Criminal Law

Whammy! It’s not everyday that civil libertarians hit a home run in the Supreme Court of Canada.  But thanks to some painstakingly strategic litigation and jurisprudence; thanks to great advocacy (by CCLA and many others, but thank you to our counsel Chris Bredt and his great team at Borden Ladner Gervais LLP); thanks to the seven justices of the Supreme Court of Canada, Canada’s ugliest populist criminal sanction is gone.

Ugly because mandatory victim surcharge fines were intentionally punitive.  When the Harper Government figured out that judges were making exceptions under the old victim surcharge law, such that courts would refuse to tack on a fine to someone who had no chance of paying that fine, those Honourable swines chose to make the fine mandatory, turning our criminal courts into factories for debtors prison.

Many of us watched trial judges break the news, often with great anguish, that they had no choice but to fine the person in front of them, more often than not someone penniless and mentally ill, an amount everyone in the court knew could not be paid.  It was cowardly of the Harper Government to do it, because they left the dirty work to the judges. It was shameful of the Trudeau Government to leave that law untouched until finally, mercifully, the Supreme Court of Canada smacked some sense into the criminal law by striking down the ugly provision, effective today.

No one should be punished for being poor. Yet for the past five years, Canadian courts have been required to impose additional mandatory fines on all individuals found guilty of a criminal offence – regardless of the seriousness of the person’s actions, the surrounding circumstances, or whether an individual would ever be able to pay back the money. Failure to pay the fine could result in imprisonment.

The results were just what the populist doctor ordered:  sweet press conferences by police showing off their ‘victim crime surcharge’ fund paying for police pet projects.  To exploit victims of crime like this was so wrong. For years the lower courts have been pushing back. Some extraordinary jurisprudence arose from provincial courts, from Ontario and BC in particular, to thread the needle that constitutionally ‘inferior’ courts ordinarily cannot achieve without superior court approval.

As if any of this was tough on crime.  It wasn’t tough at all. It was the worst of human nature, cruel and unusual punishment.  Literally.

Take the case of Shaun Michael. Shaun was a 26 year old Inuit man, addicted to drugs and alcohol, unemployed and bouncing between the street, a shelter and his aunt’s apartment. All his offences stemmed from addiction, not to mention a childhood of abuse. Over the course of several months he repeatedly became intoxicated and acted out. He stole a bottle of alcohol; jumped out into traffic; broke a shelter window. He lashed out at the security guard and police officers who came to arrest him. He drank and failed to be ‘of good behaviour’ contrary to the terms of his probation order. When he found out his father, who he hadn’t seen in many years, was in Ottawa – also living in shelters – he followed him there and forgot to notify his probation officer — another crime. Over the course of six months, from January to June 2014, he pled guilty to nine criminal offences. The law would have required the judge to impose, on top of his sentence, a fine of $900 – $100 for each summary conviction. At the time his case was decided, he owned nothing and lived on a $250 a month “street allowance”. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.

Or the case of Daniel Larocque. In 2017 he was 22 years old, impecunious, and suffering from drug addiction and mental illness. He lived on disability benefits, and after paying for food and housing he had $136 per month for all other expenses. He was subject to a $700 mandatory fine after pleading guilty to seven summary conviction offences – possessing morphine, assaults, uttering threats, mischief. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.

Or Edward Tinker. He was 55 years old when he was sentenced after pleading guilty to uttering threats and breaching his probation. He was unable to work after a workplace injury, and suffering from heart disease and cancer. He had no savings. He was living off CPP and Worker’s Compensation – $1,200 a month, which after paying $950 in rent and $80 in medication left him with about $170 a month for all other expenses. The sentencing judge ruled that the additional mandatory fines were unconstitutional.

Or Kelly Judge. A 53 year old woman, legally blind and a recovering alcoholic suffering from depression and bipolar disorder. She pled guilty to assault and uttering threats. At the time of sentencing, she had $2000 in her savings account. She lived off of $831 in CPP disability benefits; after paying $800 per month in rent she had $31 per month and her savings to cover all other expenses.

All these people faced mandatory fines – regardless of the seriousness of their actions, their life circumstances, or whether they had the means to pay them. And if they didn’t pay the fines, they faced the threat of jail time – and being brought to court to show that they were still unable to pay the fines, and therefore should not be incarcerated. With fines outstanding none of them would be able to get a pardon or record suspension, and would be saddled with a criminal record for life.

All of them were facing additional, indefinite punishment – just because they were poor, unwell, in pain.  The response of Parliament was to force judges to kick ‘em when they’re down, for good measure. Canada’s executive current caretaker of the constitution, Jody Wilson-Raybould, sent forth her agents to the SCC defend that law.  Thus is the state of populism today that a majority Liberal Government is too afraid to stand up to it in the legislature or even in our courts.

We’d venture that if Cabinet Ministers had to leave the back seat of their limo to live on the street for days at a time they would crumble in short order. That the aforementioned defendants remained alive is a story of great tragedy and perseverance.  But they did make it to their sentencing hearing, at which point the trial judges finally said enough is enough.  (That the provincial Courts of Appeal are so disconnected from the criminal legal system that they could overturn those sentencing rulings is a matter for another day).

So now the Supreme Court of Canada has confirmed it:  enough is enough. Good riddance to the ugliest law in the land.  While it may not have been as harmful as, say, our solitary confinement laws (currently being shredded by CCLA and BCCLA), it’s hard to think of a federal law so mean spirited as that sodding law.  The provincial panhandling ordinances still operating with a vengeance across Canada do maintain the crown for the Charles Dickens Barbarity Prize.

Many thanks to our counsel in the case – Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.

• Read the full decision here.
• For a webcast of the hearings, click here.
• For CCLA’s intervenor factum in the case, click here.