In 2013, Canada changed sentencing laws to require anyone convicted of an offence (or discharged) to pay a mandatory “victim surcharge” regardless of whether or not they can afford to pay the fine.
Every person who is convicted of a criminal offence is required to pay a “victim surcharge”, regardless of whether or not they can afford to pay the fine. The mandatory fine can be very difficult for poor people to pay. Failure to pay the fine can have very serious consequences, including jail. Social assistance rates in Ontario are very low, and as a result, social assistance recipients are very harshly affected by the victim surcharge. Those who are not poor do not face the same hardships.
The victim surcharge has been challenged in a number of cases on the grounds that it is a violation of the right to liberty and security of the person (section 7 of the Charter) as well as the right to be free from “cruel and unusual punishment” (section 12 of the Charter).
In R. v. Michael, the Ontario Court of Justice found that the mandatory fine violated the Charter. The Crown appealed that decision to the Superior Court of Justice and ISAC intervened to argue that poor people shouldn’t be given what are in effect harsher sentences than other people. That appeal was resolved without a hearing.
The same challenge to the mandatory victim surcharge was brought before the Ontario Court of Appeal in three other cases (Tinker, Eckstein, Larocque). The Income Security Advocacy Centre, along with the Criminal Lawyers Association and the Canadian Civil Liberties Association, were allowed to intervene in those appeals. We argued that the mandatory victim surcharge is unconstitutional because of its unequal impacts on people living in poverty, including historically disadvantaged groups such as women (particularly single mothers), persons with disabilities, racialized communities and Indigenous persons. (To read our legal arguments, click here for the Word version and here for the PDF version.)
Unfortunately, the Court of Appeal dismissed the appeal, and upheld the surcharge. The full text of the Court’s decision can be found here: R. v. Tinker, 2017 ONCA 552.
This issue was heard by the Supreme Court of Canada in four cases, Boudreault v. the Queen, Larocque v. R, Eckstein v. R and Tinker et. al. v. Queen, on April 17 and 18. ISAC was granted intervenor status in both cases in coalition with Colour of Poverty – Colour of Change. Avvy Go from the Chinese and Southeast Asian Legal Clinic and Shalini Konaur from the South Asian Legal Clinic of Ontario (SALCO) co-counselled with ISAC in this important case. Our intervention emphasized the importance of an equality analysis in cases involving criminal law and personal liberty, and the disproportionate impact of this law on people living in poverty.
The Supreme Court has not released its decision.
Our legal arguments in the Boudreault and Tinker cases can be found here: COP ISAC Factum (Website) March 28 2018