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Canadians Need to Stop These Appalling New Laws in Their Tracks

11/08/2013 07:24 EST | Updated 01/23/2014 06:58 EST

Last week, I wrote about the federal government's latest draconian criminal law, the mandatory victim surcharge.

October 24th's dubiously named Increasing Offenders' Accountability for Victims Act eliminates a judge's ability to exempt a convicted person from paying a surcharge, even if the payment would cause this person undue hardship. Equally appalling, the law really provides no accountability to the actual victim of an offence.

In effect, the surcharge punishes the poor more severely than the rich, and may result in destitute debtors being sent to prison for their inability to pay mandatory fines.

Who needs to pay $200.00 a ticket to see Les Misérables in theatres, when we can get free, premium seats in our own courtrooms?

Unreasonable fines and the threat of jail for a person's inability to pay a court-imposed fee affronts the spirit of our sentencing principles, is immoral and unconstitutional.

Since the federal government doesn't seem to care about constitutional rights, we are left with the question, "What can be done?"

There are a number of parties who can minimize the negative impact of the law and change its course.

I believe that most Crown Attorneys, judges, and civil servants understand both the unconstitutionality and the dangers of this law. They can engage in a form of civil disobedience. In appropriate cases, Crown Attorneys and judges can refuse to impose the victim fine surcharge. Court workers can refuse to take the money from the convicted or discharged person.

This is a radical proposal. The rule of law is fundamental to a peaceful, democratic society. Where judges, civil servants, and agents of the state take the law into their own hands, we often end up with civil strife, tyranny or anarchy.

Perhaps then, in this case, civil disobedience isn't realistic or desirable.

So let's move on.

Crown Attorneys do have other, lawful, options.

They can examine cases carefully, long before they reach trial, and recommend restorative justice for many of those cases. At the end of the process, Crown Attorneys can ask that the charges be withdrawn or stayed, thereby negating the need to impose the victim surcharge.

But restorative justice has been available to Crown Attorneys for decades, and they have not exactly embraced it. It will be many years before we make significant progress in this direction. So this option will have limited impact on mandatory victim surcharges.

Judges could (and some already have) perform judicial gymnastics when sentencing someone, to find a way around the imposition of an unreasonable victim surcharge. But these approaches are, at best, random. They don't provide a decisive answer.

We need universal solutions, not ad hoc ones that are at the discretion of individual Crown Attorneys and judges. We need to stop these laws in their tracks.

So where do we turn next?

Defence lawyers.

Defence lawyers are frequently the saviours and protectors of our constitutional rights and freedoms. They can challenge this law.

When it comes to mandatory victim surcharges, defence lawyers will likely -- and probably at a financial cost to themselves -- challenge the constitutionality of this law. This will allow the courts to use the Charter of Rights and Freedoms, as well as lawful, evidence-based and reasoned arguments, to reject or refine the law.

However, given the costs involved in challenging the constitutionality of a law, it may be quite some time before a lawyer or an organization will be in a position to initiate a challenge.

This approach has other shortcomings. Specifically, before a court decision can apply to the whole country, it will have to reach the Supreme Court of Canada. That can take years; years during which we will have a patchwork of inconsistent decisions by different courts; years during which the poor may face jail time if they cannot pay a victim surcharge; years during which we will waste money and resources on a law that is clearly unconstitutional and should not have been enacted in the first place.

But this is what our current government desires. So long as it is the courts that decide that a law goes too far and violates our constitutional rights, the Conservative government can claim to be on the side of victims, and then condemn the courts or defence lawyers, or other "criminal-loving" people.

The Conservatives will continue to pretend to care for victims, while giving them nothing other than a short-lived sense of gratification -- should any gratification come from an offender's paying $100-$200 into a general fund.

But we don't have to wait for defence lawyers to challenge the law. We all can change the course of this disaster.

Harper's laws are, ultimately, about votes and about staying in government.

Tell your Member of Parliament, "I will not vote for you if you enact laws that only help victims in name, but ultimately do not heal them, and perpetuate the problems of our criminal justice system." Tell your federal candidates at the next election, "I will only vote for you if you reverse these backward, ineffective laws, and if, instead of spending billions of dollars on jails, you put the money into prevention, education, and long-term help for victims and offenders."

If people directly hold their MPs accountable, then we are more likely to get results.

Let's demand more of our government.

Let's ask them to be leaders, not simply vote-collectors.

Let's insist that they pay attention to social science, to evidence, and most importantly, to our constitutional rights.

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