Appeal could bring end to judges' dismissing victim surcharge

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A defence lawyer raised the spectre Monday of a court system bogged down by needless and lengthy constitutional challenges if a Crown appeal on the controversial mandatory victim surcharge is successful.

Crown prosecutors are challenging two recent decisions in which Ottawa judges refused to impose the mandatory surcharge. In both cases, the judges declined to impose the surcharge without hearing any legal argument. The surcharge is intended to raise funds for victim services.

In refusing to impose the surcharge, the judges said they were persuaded by an earlier Ontario court ruling that concluded the controversial fee put in place by the federal Conservative government amounted to cruel and unusual punishment. That decision, by Justice David Paciocco in the case of an aboriginal offender named Shawn Michael, is under a separate appeal set to be heard in April.

While the Crown is appealing only two decisions that cite the Michael decision, the tactic has been used by roughly half of Ottawa’s judges to avoid imposing the surcharge on anyone, whether they have the money to pay the surcharge or not.

Assistant Crown attorney Julien Lalande told an Ontario Superior Court judge Monday that the result has been a justice system where offenders don’t know from one day to the next whether they will have to pay the surcharge, which is supposed to be $100 or $200 depending on the severity of the offence, or an amount equal to 30 per cent of any fine.

Lalande said it has also created a court where two parties — the offices of the provincial and federal attorneys general — are denied both proper notice and the opportunity to make a meaningful legal argument defending the constitutionality of the law.

“Can a provincial court, of its own motion, without proper notice to either of the attorneys general and without any argument declare a law unconstitutional?” asked another prosecutor, Louise Tansey. “This is the legal question that is before this court, and it is the Crown’s submission that the simple answer is No.”

According to the Crown, the provincial court lacks the jurisdiction to strike down the law. Each and every case requires a fresh constitutional argument, the Crown argued.

But the lawyer for one of the offenders whose decision is being appealed argued that that approach would bury the court in unnecessary constitutional challenges.

“It is a waste of the court’s time to hear the same argument again and again and again,” said defence lawyer John Hale. “We want justice, but we also want efficiency.”

Hale questioned whether the Crown appeal was “a tool to plug the holes in the dike” because the judges’ decisions to not enforce the surcharge reduced the amount of money available for victim services.

Hale acknowledged some judges have flatly refused to impose the surcharge as a result of the Michael decision, but he argued that judges often tell the Crown prosecutors where they stand and give them a chance to address the victim surcharge at the start of the day.

“It is kind of sad looking at some Crowns because they look so resigned,” said Hale. “They are like the Charlie Browns of the criminal court in front of some judges because they know they are going to pull the football away.”

Hale argued that the Crown is aware of the objections to the constitutionality of the law and should be on notice that it might be an issue, particularly in cases involving offenders who lack the means to pay the surcharge. Forcing every offender to bring a constitutional challenge would nullify the effect of the important decision to strike down the law, Hale added.

Ontario Superior Court Justice Julianne Parfett, who will decide whether judges can continue relying on the ruling that found the law unconstitutional, reserved her decision.

aseymour@ottawacitizen.com

Twitter.com/andrew_seymour