Judges’ opposition to fining criminals under fire from victims’ advocates

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Victims' groups are rallying to the defence of the Conservative government's mandatory fine for all convicted criminals, saying that a rebellion by judges is making a mockery of the justice system.

"I think judges should probably take a little more time to figure out what they are doing," Sharon Rosenfeldt, president of Victims of Violence, a national group, said in an interview. "Some of them are making such a farce and a mockery, like the Ontario judge who gave an offender 60 years to pay."

The government doubled the fine and made it mandatory, effective Oct. 24. Judges who impose a fine must add a surcharge of 30 per cent; if they don't impose a fine, there's an automatic penalty of $100 for a summary (less serious) offence and $200 for an indictable (more serious) offence.

Some judges in several provinces are simply refusing to order the fine. Some are giving offenders decades to pay; some give $1 fines with 30 cents surcharge; and at least one judge, in Alberta, gave an offender no time to pay, declared a default and ordered a day in jail, to overlap with a sentence already being served.

Judge Colin Westman of the Ontario Court of Justice in Kitchener calls the fine a tax on "broken souls," but Ms. Rosenfeldt, whose16-year-old son Daryn was murdered by serial killer Clifford Olson, said that "a lot of victims of crime have broken souls too."

"We keep on hearing that our prisons are filled with people who have been victims of crime and never received treatment. Maybe if they had treatment, help and support when they were victimized, they wouldn't grow up to commit crimes," Ms. Rosenfeldt said, adding that any offender can afford to pay $100 or $200.

Before the fine became mandatory, judges routinely waived the penalty, and rarely explained why, despite a requirement that they do so. "It became almost like the law did not exist," Françoise Boivin, New Democratic justice critic, said in an interview. After studying the bill at a parliamentary committee, "the needs we heard from the victims' groups were pretty loud and clear."

A New Brunswick justice department study in 2005-06 found that in 99 per cent of the cases in which the fine was waived, there was no documentation setting out the undue hardship that would be caused by the fine. Sue O'Sullivan, the federal Ombudsman for crime victims, called for the fine to be made mandatory in a 2012 report.

A spokesperson for Justice Minister Peter MacKay took aim at judges who are skirting the law by allowing decades to make payments. "When a sentencing court imposes a payment schedule for the payment of the victim surcharge, the court must adhere to the sentencing purpose, objectives and principles to ensure that it is a fit sentence in the circumstances," said Paloma Aguilar, Mr. MacKay's press secretary.

Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime, an advocacy group, said judges' actions are "extremely disrespectful to victims, not to mention having the effect of hindering the proper funding of victim services."

Ontario collected more than $44-million from the victim fine surcharge in 2012-13 and put it in the Victim Justice Fund to pay for victim witness programs, rape crisis centres and other crisis programs, the Attorney-General's Department says.

Liberal MP Irwin Cotler said the mandatory fine is wrongheaded. "I believe we should trust judges to exercise their discretion appropriately."

In Toronto on Wednesday, a 54-year-old Mi'kmaq woman who served 68 days in jail after grabbing a man and trying to take money from him outside an automatic banking machine, and stealing another man's debit card after selling sexual services to him, narrowly missed having to pay the mandatory fine. The second of her two offences was on Oct. 2. Her lawyer, Toomas Ounapuu, said she would have faced a potential fine of $300.

"It's the most ridiculous thing – I don't think Parliament thought about it carefully," he said.