{"id":2733,"date":"2018-04-17T20:59:22","date_gmt":"2018-04-17T20:59:22","guid":{"rendered":"https:\/\/ccla.org\/?p=2733"},"modified":"2021-06-12T21:05:34","modified_gmt":"2021-06-12T21:05:34","slug":"locking-up-the-poor-for-being-poor-ccla-at","status":"publish","type":"post","link":"https:\/\/ccla.org\/fr\/uncategorized\/locking-up-the-poor-for-being-poor-ccla-at\/","title":{"rendered":"Enfermer les pauvres parce qu'ils sont pauvres : l'ACLC \u00e0\u2026"},"content":{"rendered":"\n\t\t
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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 \u201coffenders,\u201d is a cruel and unusual punishment that should be struck down by the Court.<\/p>\n

The victim surcharge requires individuals to pay a financial sum \u2014 over and above any fines that are a part of their sentence \u2014 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\u2019 discretion to waive the surcharge in certain circumstances. At issue in the cases before the Supreme Court this week\u00a0(Tinker et al v Her Majesty the Queen<\/em>\u00a0and\u00a0Boudreault v Her Majesty the Queen<\/em>) is whether this removal of discretion was constitutional.<\/p>\n

Imprisoning the poor for being poor is the populist resurrection of the barbaric debtor\u2019s prison pilloried by Charles Dickens. Mr. Justice Binnie put it this way:<\/p>\n

Debtors\u2019 prison for impoverished people is a Dickensian concept that in civilized countries has largely been abolished.\u00a0 Imprisonment for civil debt was abolished in Ontario by the end of the 19th century.\u00a0 In its 1996 sentencing reforms, Parliament decreed that jail should be reserved for those whose conduct deserves to put them there.\u00a0 Here, the trial judge thought a fit sentence would be a suspended sentence with probation, but this was not possible under the Act.\u00a0 Yet debtors\u2019 prison \u201cin the community\u201d, 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.\u00a0 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\u00a0fine\u00a0to make payment.\u00a0Genuine inability to pay a\u00a0fine\u00a0is not a proper basis for imprisonment. (R. v. Wu, [2003] 3 SCR 530).<\/em><\/p>\n

As Doherty JA wrote in that case on appeal:\u00a0 \u201cEconomic imprisonment whether in jail or in the community is offensive to the present provisions of the\u00a0Criminal Code<\/em>\u00a0relating to fines.\u201d (R. v. Wu<\/em>) at para. 40).<\/p>\n

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\u2019s ineligibility to obtain a pardon and the associated effects of this ineligibility on one\u2019s prospects for employment, rehabilitation, and reintegration into society.<\/p>\n

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.<\/p>\n

Counsel in this case\u00a0is\u00a0Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of\u00a0Borden Ladner Gervais LLP.<\/p>\n

For a webcast of the hearings,\u00a0click here<\/strong><\/a>.<\/p>\n

For CCLA\u2019s intervenor factum in the case,\u00a0click here<\/strong><\/a>.<\/p>\n<\/div>\n<\/div>\n\n\n\n\n\t\t\t<\/div> \n\t\t<\/div>\n\t<\/div> \n<\/div><\/div>\n\t\t

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About the Canadian Civil Liberties Association<\/h3>\n
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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.<\/p>\n<\/div>\n\n\n\n

For the Media<\/h3>\n
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For further comments, please contact us at\u00a0media@ccla.org<\/u><\/a>.<\/p>\n<\/div>\n\n\n\n

For Live Updates<\/h3>\n
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Please keep referring to\u00a0this page<\/a>\u00a0and to our social media platforms. We are on\u00a0Instagram<\/u><\/a>,\u00a0Facebook<\/u><\/a>, Twitter<\/u><\/a>, LinkedIn<\/a> and BlueSky<\/u><\/a>.<\/p>\n<\/div>\n\n\n\n\n\t\t\t<\/div> \n\t\t<\/div>\n\t<\/div> \n<\/div><\/div>\n