Victim Justice

"While my judicial independence is very important, in the sense that I must be able to decide cases without fear or favour, such independence does not mean that I should conduct myself as if unmoored from legislative directives. Put another way, I can't just do whatever I want."
"I should give Parliament and its stated objectives due respect and assume it has considered the reasonably foreseeable consequences of its actions. To my mind, whatever personal views I may have on the matter are immaterial; as a simple matter of rule of law, I must put Parliament's expressed will into effect."
"While they may not exactly put it this way, some argue that the mandatory surcharge is problematic sentencing policy simply on the basis of the old proverb that one cannot get blood from a stone. However, sentencing policy is a subject matter properly within the scope of the legislature. One could certainly argue that any effort to modify the sentencing regime to enhance the services extended to victims of crime is a valid, and even laudable, legislative objective."
"Again, anyone who spends any time around the criminal courts will know that victims require assistance and consideration. The process can be quite an ordeal for them. The view that sentencing ought not be only about the offenders is a legitimate view to hold."
"Those who refuse to make a reasonable effort without reasonable excuse should bear the consequences.With the greatest respect to those who have held otherwise, I will impose the mandatory victim fine surcharge without extraordinary qualification."
Ontario Court Justice Kevin Phillips

"This is exciting to see. This is a fair application of the sentencing regime as Parliament has intended it. We want to see judges applying the law with consistency in this way."
"The politicians, the people that we elect across Canada, those who represent us, those members of Parliament, they are the ones that are given the power from the citizens to create the laws, and it is a judge's role to impose those legislative directives that have been given to them."
Heidi Illingworth, executive director, Canadian Resource Centre for Victims of Crime

The Canadian public has read several instances of judges whose attitudes are belligerent to the recently passed legislation informing that judges will no longer have the discretion whether or not to impose a victim surcharge on perpetrators of crime. That surcharge, generally in the sum of $100 or $200 dependent on crime severity, is automatically supposed to be imposed during sentencing of criminal activities. It is meant to go into a general fund to aid the victims of crime.

While society focuses on criminal activity and the disciplinary results of a trial when someone is found guilty of a criminal offence, rarely do we give very much thought to the plight of victims. It is the victims of crime that are left to pick up the broken pieces of their lives. Crime has a number of costs imposed upon the victims, and one of them, besides the psychological and physical trauma, is monetary costs where restitution is possible through the victim surcharge.

In the case in question a man who lives on a disability pension was found guilty of a crime. The presiding judge, Justice Philips, decided in his wisdom to give all due respect to the law of the land. He outright spurned taking action that a number of other justices have done to express their contempt of the new victim surcharge law, such as allowing a lifetime to pay off the charge at payment of 30 cents a month, or imposing a $1 fine, citing perceived inability to pay.

Waiving a mandatory fine under the new legislation goes beyond the jurisdiction of a judge whose professional task is to uphold the law, including laws with which they take exception. If a newly introduced law is held to be constitutional it must be given due respect and obeyed. To do otherwise is to go beyond the law, and to become a law unto themselves which some justices appear to feel they are entitled to do.

Ontario Court Justice Stephen Hunter took it upon himself to characterize the new law as a punitive 'tax'. As a tax, he held it was therefore unconstitutional. Another judge simply acted as though the law was never passed. While others have given between 50 and 90 years to pay the offender's stipulated mandatory surtax. They have taken umbrage that discretion in decision-making has been removed in the imposition of the victim surtax.

Previously, many justices took the liberty of not even enquiring to determine whether proof existed when someone found guilty of committing crime claimed an inability to pay the surtax; they simply waived it out of hand.