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 convicted of a criminal offence was required to pay a “victim surcharge”, regardless of whether or not they can afford to pay the fine. The mandatory fine is very difficult for poor people to pay. Failure to pay the fine could 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 was 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.
Unfortunately, the Court of Appeal dismissed the appeal, and upheld the surcharge.
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. ISAC was granted intervenor status in all of the 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.
Our legal arguments in the Boudreault and Tinker cases can be found here: COP ISAC Factum (Website) March 28 2018
“The mandatory victim surcharge has its harshest impacts on the racialized groups that are over-represented in the criminal justice system and have higher rates of poverty,” said Shalini Konanur, executive director of the South Asian Legal Clinic of Ontario. “Not only does it perpetuate racism and inequality within the criminal justice system, it also reinforces the inequality of poverty for these same groups.”
In a landmark decision released in December 2018, the Supreme Court struck down the mandatory victim surcharge, finding that it was cruel and unusual in its effects on people living in poverty.
In its judgment, the Supreme Court found that for poor people, the mandatory victim surcharge amounts to a sentence with no predictable end, and possibly no end at all. It has a significant impact on the liberty, security, equality and dignity of those who lack the means to pay the fine. The Court compared the process to a “public shaming” of impoverished people and described it as “an abhorrent an intolerable punishment” for “the poorest individuals among us.”
“The Supreme Court’s decision makes the essential point that mandatory fines impose a different system of justice for the rich and the poor,” said Jackie Esmonde, staff lawyer with the Income Security Advocacy Centre. “It is long past time for the federal government to abolish all of the mandatory minimums in the Criminal Code, which have only deepened inequality in this country.”
You can read the Court’s decision here: