Last week, on Oct. 24, another noxious, ineffective, irrational, costly and purely political Conservative "pile on the punishments" law came into effect.
The Increasing Offenders' Accountability for Victims Act, like so much other criminal law legislation enacted by the Conservative government, neither increases offenders' accountability nor helps victims much.
In this Act, we see regressive amendments to an existing law on victim surcharges. Victim surcharges are an additional fee that a person who is found guilty of a crime must pay on top of any other punishment imposed on him. The amount payable is set out in the Criminal Code.
A victim surcharge is different from a fine. The latter is a form of punishment. The money recovered from a fine goes to the government, not toward any specific projects. A surcharge is not intended as a form of punishment, per se, though it is part of a sentence. It is an additional fee, imposed on those who have been found guilty of an offence, for the purpose of supporting provincial victim services programs. In theory, a surcharge holds persons who have been found guilty of an offence somewhat accountable for the recovery and support of other victims.
Until Oct. 24, a judge had discretion to exempt a person from payment, if such person established that payment of the victim surcharge would cause her undue hardship.
Permitting a judge to waive the surcharge makes sense in our criminal justice system: we no longer live in an era when people are incarcerated in filthy, inhumane jails -- debtors' prisons -- because of their inability to pay a fine. (We put them in filthy, inhumane jails for other reasons.) The principle that people should not be jailed simply because they are poor or unable to pay a fine is entrenched in our criminal justice system, though it is imperfectly followed.
Similarly, in our system, judges may only impose a fine that a person can afford to pay. Where a person simply cannot pay a fine, then judges must find another suitable sentence.
If a judge waives the victim surcharge, that is not tantamount to a person's avoidance of accountability. The convicted person still has to serve his sentence.
The fundamental principle that it would be wrong to punish people because of their inability to pay should extend to the payment of victim surcharges. And it did. Until Oct. 24.
The new law brings forth two changes. The first, less objectionable, aspect is that it doubles the amount of surcharges, from $50.00 and $100 to $100.00 and $200.00, depending on the case. (The initial surcharge amounts were set in 2000. Salaries haven't doubled since then, but victim surcharges just doubled.)
But the fundamental problem with the law is that it eliminates judicial discretion to waive the victim surcharge. Under the new law, a judge is prohibited from giving consideration to undue hardship or to the financial circumstances of the person.
You won't be able to buy medication for your illness? Irrelevant. You will have to take off a week from your work as a hotel cleaner (and perhaps risk losing your job) because you can't afford to hire someone to take care of your ailing parent? Just dandy. You are homeless and live on the streets? Makes no difference. All we care about is that you pay the surcharge. So what if the long-term costs to society and to the person might be higher than the surcharge?
The Conservative government claims that forcing people to pay the surcharge makes offenders accountable to victims, and, in turn, helps those victims. But that is far from the truth. Offenders do not pay the money to the victims of *their* crimes. They just pay it to the court, as part of their sentence. The perception for the offender is that the surcharge is a fine, part of their punishment.
If the government cared about accountability and helping victims of crime, it would promote programs that help victims heal, confront their offenders and their fears, and move on with their lives.
If the government truly cared about accountability and the welfare of victims, it would invest in good restorative justice programs.
But this government is not in the business of reconciliation, healing of victims, or true accountability. It is in the business of getting votes and appearing to be tough on crime, while, in fact, just being tough on people and stupid on crime.
Lest we blame only the Conservative government for this grave sin, let us remember that, sadly, the New Democratic Party also voted in favour of this legislation. They, too, deserve blame for this backward law that not only removes discretion from trial judges, but also moves our judiciary, not just to the right, but right into the Middle Ages.
So what can be done? What is going to happen?
I will address potential solutions in my next article.
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