The Supreme Court has struck down the Harper government’s Victim Surcharges as “cruel and unusual” — a surprising move to many Supreme Court watchers. Lisa Kerr helps break down the SCC decision, the rationale behind it, and the way she feels the court got it right — and wrong.
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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and sometimes I get distracted by the headlines. That’s why a very important story almost slipped past me last week, a Supreme Court decision against an immensely controversial legacy of the Harper government mandatory victim surcharges. On the surface, they seem like a blow for victims’ rights and justice for all, but as unpacked by Lisa Kerr, they were often the opposite of just. Lisa is the developer and instructor of the Criminal Law Module of Law 201-701, Introduction to Canadian Law. She’ll take us through the legislation, the Supreme Court decision, the nature of Supreme Court dissent, and the way she thinks the highest court in the land got it right and wrong. This podcast is brought to you by The Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
01:06 MS: I hear there’s a new Supreme Court case. Tell me what it’s all about.
01:09 Lisa Kerr: Yeah, so this new case that was just handed down is called R v Boudreault, and many in the legal community were excited to see this decision because it was the first decision written by Sheilah Martin, one of the new appointees to the court. She’s been on the court for about a year, but this is a decision authored by her. She writes the majority opinion, a 7-2 decision that’s all about whether those who are convicted of crimes also have to pay a mandatory fee along with any other punishment that they are faced with. And the big question in this case was, is it fair to have a mandatory fee imposed on someone for having committed a crime, no matter whether they are very poor, whether they’re very marginalized, whether they really have any ability to pay?
02:00 MS: And was this was relatively recently introduced, too.
02:02 LK: Well, so for many years in the criminal code, a judge had the discretion to impose a fine, a victim surcharge along with any other punishment. But in 2013, the Harper conservatives, as part of their victim rights type legislation, tough on crime legislation, they amended section 737 of the code and made it mandatory. So this was called the mandatory victim surcharge and what it said, this new law as of 2013 was that judges had no discretion here. If someone was convicted of a summary offense, so a less serious offense, then the judge had to impose either 30% of any fine or a minimum of $100. If it was an indictable offense, a more serious offense in our system, then the judge had to impose at least a $200 fine. And those sound like small numbers to many of us, $100, $200. But you have to consider that many people might be facing multiple convictions on different counts. It may all be very low level: Uttering threats, mischief, those kinds of offenses, that in our system we consider fairly non-serious. And that many of these people are people who are living on $800, $900 of social welfare of some kind or another, per month.
03:30 LK: And in fact, many of the appellants or plaintiffs in the case at bar, that was exactly their situation. Just to grab one example, one of the litigants was a blind woman, who had a monthly income of $831, and 800 of that went to her rent, so she had $31 of disposable income on a monthly basis. She was convicted of uttering threats, and she wound up with $200 in a mandatory victim surcharge. For her, that amount of money, it wasn’t possible for her to pay it. And so, what she’s facing as a result where what the court considered to be indefinite punishment. Because she was always at risk of being brought before courts for a committal hearing and so on. And this issue of this unpaid fine would really follow this woman indefinitely. That’s why these issues wound up getting litigated.
04:28 MS: So bringing this up to a more structural level, judges do have a fair amount of discretion, but there are some things they just can’t say no to.
04:36 LK: So that’s the whole discussion when it comes to mandatory penalties. We talk about mandatory minimum sentences, and typically what we’re talking about there are mandatory sentences for where a judge has to send you to jail or prison for a particular amount of time. And those have been in the headlines a lot the last few years and we’ve seen the Supreme Court strike down a few, three in total, mandatory minimum terms of incarceration.
05:04 LK: This is also a case about a mandatory punishment. But here we were talking about a mandatory fine that would be imposed in addition to any other punishment and so the judge has no discretion not to impose it. So what you saw going on in the last few years in the court system, where many lower court judges, particularly Provincial Court judges in Ontario really did not want to impose these fines.
05:29 MS: Right.
05:29 LK: There was almost a judicial revolt in the Provincial Court about it. And why? Because these are judges who see these people in and out of the court system and they know there’s no ability to pay, and they know that they’re just imposing yet another burden on this person that actually isn’t going to further their rehabilitation, really isn’t going to sort of help them in life in any way, but it’s just gonna be another sort of hassle, administrative challenge that they really cannot meet. And so you saw these lower court judges, avoiding these penalties in all kinds of creative ways, declaring them unconstitutional and so on. So with all these cases, the issue eventually did get up to the Supreme Court and generated this opinion.
06:09 MS: Right. No, you saw, there’s a lot of creativity going on there like, “Yeah, there’s a fine, but we’re gonna give you a hundred years to pay it.”
06:14 LK: Right. [laughter]
06:15 MS: That kind of thing. So, why the Supreme Court? Why did this have to get all the way up there? Is it because this was originally kind of a federal ruling?
06:25 LK: Yeah, so the reason it has to go to the Supreme Court is that what was happening was these Provincial Court judges were trying to avoid it. A couple of them tried to say it was unconstitutional, but they were getting overturned in the Superior Court system. So eventually these issues just continued to be litigated until the Supreme Court had a chance to weigh in. And what the Supreme Court said in this majority opinion was that these mandatory fines in at least some cases, not in all of course, but in some cases they were generating cruel and unusual punishment. Some were surprised by this decision because Section 12 of the Charter, which prohibits cruel and unusual punishment, is typically considered to be a pretty high bar. Pretty hard to say that a punishment has violated it. The language in the law is that the punishment has to outrage standards of decency, it has to be an abhorrent or an intolerable punishment. So that sounds like something that has to be pretty severe.
07:25 MS: So can you give me an example of something else that has been deemed cruel and unusual?
07:29 LK: Yeah. So in the mandatory minimum area, there’s been seven-year prison sentence for importing narcotics, even if the narcotic was just marijuana, even if it was just a single joint, even if the offender was a first-time offender.
07:47 MS: Right.
07:47 LK: So in that case, which is called Smith from 1987, the Supreme Court said that’s abhorrent and intolerable, we’re not gonna send that person to prison in all cases for seven years.
07:57 MS: Right. That’s pretty stark.
08:00 LK: That’s a stark one. And then of course, there’s a lot of jurisprudence saying that there are particular kinds of penalties that are unconstitutional in our system. So that would include things like capital punishment, things like corporal punishment, those kinds of methods of punishment that are no longer acceptable in our society. But there was a real question, would a fine, and particularly a fine that at least to those who haven’t thought carefully about the situation that marginalized people are in in our society, a fine looked fairly modest.
08:34 MS: Right.
08:35 LK: Yeah, and so some were surprised to see this majority opinion from the court, but when you dig into the reasons, you start to see, “Wow, the people that the court was thinking about here, they really are in circumstances where this fine is not payable.” And they can mount. It could be hundreds of dollars, it could be thousands of dollars at the end of the day, and it really was serving no valid penological purpose. And so, I think the majority opinion just took a really realistic view at the life circumstances of people who are very low income in our society and just said, “You know what, no. We’re not gonna say that this kind of punishment is valid in our system.”
09:20 MS: So what was the foundation for the dissent?
09:23 LK: Well, the dissent, there were two judges in the dissent, Justice Cote and Justice Rowe, and they sort of said, “It’s a very high bar to say that something is cruel and unusual punishment.” They said, “There’s only been three cases in Supreme Court history where we have found a punishment to be cruel and unusual.” And that’s true. And each of those were about prison terms in the range of three to seven years. And those are all fair points. One thing the dissent did that I think was a little odd was they tried to compare this punishment, this fine, to methods of punishment that no one would try to suggest were acceptable. So they talked about lobotomizing, they talked about castration of sex offenders, they talked about these kind of extreme corporal sanctions that are quite obviously no longer acceptable in either our society or pursuant to the Charter. And so I thought that comparison was a little bit extreme.
10:33 MS: Right. They’re throwing up some straw men, kind of.
10:35 LK: Yeah, and there’s something sort of American about that approach, right? This notion that Section 12 of the Charter is really only about saying that these sort of ancient methods of punishment cannot be used in modern society. And I actually think that Section 12 of the Charter, that it’s okay for it to evolve and for it to represent the standard of a modern society and a society in which we understand that a fine for a very poor person is going to be a very different kind of punishment than it will be for someone of more means.
11:14 MS: Right.
11:15 LK: And so, really, what the majority judgment said was, “Listen, for a marginalized person, this is a very extreme punishment and you or I may not really get that, but when you dig in to the amount of income that some of these folks have at their disposal on a monthly basis, you realize this sanction is unacceptable.”
11:35 MS: Right. So getting back to these rulings and what happens after these rulings, is it like someone just pulls out a big law cancelled stamp and stamps the law and it goes away? Or does it get sent back for adjustment?
11:47 LK: It’s a great question ’cause in many cases, especially recently, where courts declare a provision unconstitutional like they did here, they’ll often give government some time to fix the law. That’s called a suspended declaration of invalidity, it’s where you basically say, “We’re declaring this law invalid, but Parliament gets some time to fix it.”
12:07 MS: I fuzzily recall something about prostitution laws being in that category for awhile.
12:12 LK: Sure. I mean, most of the big Charter cases, the government did get at least a year to go and fix the laws. Why did they get a year? Well, it was sort of an idea that it was in the public interest to not just have a sort of vacuum, a gap in the law that we should give Parliament a chance to re-draft the law. In this particular case, they did not get that suspension. The judgment had immediate effect. The provision is unconstitutional, and that was because there really was no public interest that is being served by the imposition of these fines. There won’t be any sort of problem for society…
12:51 MS: Right.
12:51 LK: If these fines aren’t imposed.
12:53 MS: I don’t wanna get too far down the rabbit hole of kind of the mechanics of the law that is now off the books. But where did that money go?
13:02 LK: As far as I understand, each province was administering the funds because the administration of justice in our system is a provincial matter, even though the criminal law is a federal matter. So actually, that was actually part of the case and it was interesting. Each province was enforcing collection of the fine in a different way. And so, that was an additional issue that the majority was concerned about, which was issues of fairness. For some, in some provinces, they were facing tactics by collection agencies and so on. And others in other provinces were not facing those kinds of challenges. So there was variation, but the purpose of the collection of the fine was supposed to be to support victim services, and the majority said, that was of course a perfectly acceptable government aim, but that it still didn’t justify the sort of dysfunctions of how the provision was working.
14:11 MS: Right, so what happens next?
14:14 LK: Well, I mean this issue is kind of over.
14:17 MS: Okay.
14:19 LK: [laughter] The Supreme Court, as we say, gets to be right because it’s last. I think in terms of implications of this decision, it suggests to me that many of the other mandatory minimum penalties that are still on the books are not valid.
14:37 MS: Right.
14:38 LK: There’s been talk in recent years about a commitment that the governing Liberal Party made in its campaign, and while it was in opposition to reverse a lot of the work that the Harper conservatives did in passing mandatory minimums. They made these commitments. Many have noted that the liberals haven’t acted yet on fixing mandatories, on removing many of the mandatories for drug and gun offenses that the conservatives and previous liberal governments brought in. They haven’t acted on that. They’re being litigated all over the country, just dozens upon dozens of cases right now where defense counsel are challenging mandatory minimums in all kinds of cases; they are being struck down all over the place. And to me, the most significant impact of this Boudreault decision is gonna be to say if a $100 fine is cruel and unusual punishment, then a six-month jail sentence, depending on the facts of the case and the offense of course, it’s gonna be a lot easier for defense counsel to say that too is cruel and unusual punishment.
15:47 MS: And now that there’s a Supreme Court ruling, we’re a precedent-based system, so if the highest court in the land sets a precedent that this is cruel and unusual, it trickles down?
15:57 LK: Yeah, and in this way, definitely. And in this way, I would agree a little bit with the dissent. So the dissent was really emphasizing that in our history, this cruel and unusual punishment concept has been quite a difficult concept, as in it set a difficult threshold for people to meet. It’s a very high threshold. You have to prove that it would shock, that the punishment would shock the conscience of ordinary Canadians. And I think many scholars, including myself, thought that that was really way too high of a bar. Why don’t we have a system where punishment has to be proportionate and fair?
16:37 MS: Yeah.
16:37 LK: Otherwise, it’s unacceptable. Instead, we had this rule that said, Parliament can kind of impose whatever punishments it wants, and as long as it doesn’t reach this very high standard of shocking the conscience of ordinary Canadians, then it’s okay even if it’s disproportionate, even if it doesn’t achieve a legitimate penological purpose, even if it doesn’t really meet the other principles of sentencing in the criminal code. And I think the dissent is right to say, “This has been a high standard.” And so I think the majority judgment does move the law in a different direction and does suggest to lawyers that the standard is not as high as we thought it was before.
17:19 MS: Right. I mean, even the words ‘cruel’ and ‘unusual’ don’t imply shocking to me.
17:23 LK: Oh, really?
17:23 MS: Well, there’s lots of stuff that’s unusual that doesn’t shock me. Like, I mean, a strangely shaped Cheerios unusual, but I’m not shocked when it lands in my bowl.
17:32 LK: Well, it does have to be cruel and unusual. [laughter]
17:35 MS: Right. Fair enough.
17:37 LK: But I think it raises an interesting point, which is, these are just words.
17:42 MS: Right.
17:43 LK: And they always require interpretation. And until now, I think it’s true, I agree with the dissent, we have interpreted the standard as really requiring quite a lot, and I think this majority judgment suggests to us that this question of what we’re gonna say is cruel and unusual, we’re actually gonna be a little bit more rigorous in scrutinizing what it is that the government is doing when it comes to state punishment.
18:12 MS: Anything else to cover on the point?
18:13 LK: No, thanks for talking about the case with me.
18:16 MS: Thank you.
18:16 MS: Thanks to Lisa Kerr. If you’re interested in Canadian law, you’ll be introduced to the basics in the Criminal Law Module of Law 201-701, Introduction to Canadian Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.