Monday, December 9, 2013

Judges ought to enforce laws, even foolish ones

The legislation requiring penniless convicts to pay a mandatory fee that they never can pay is foolish.

But the truth is the legislation, while foolish, was passed by the duly elected Parliament of Canada acting within their constitutional jurisdiction.

While it may, in certain bizarre circumstances, potentially lead to a term of incarceration for non-payment (and inability to pay would likely remove that possibility) it is hard to see how the fines are a cruel or unusual punishment.

Judges can massage the law a little (see the 99 years to pay) but broadly put unless a law in unconstitutional a judge has a duty to enforce the laws.

I may think, for example, our current drug laws are misguided and counterproductive – but if I was a judge I would nevertheless enforce those foolish laws.

Parliament made a mistake with the mandatory victim fine surcharge – I hope the law is repealed one day.

But until it is repealed it is the law: 

Judges defy order to impose Tories’ victim-services surcharge


The Globe and Mail Published Monday, Dec. 09 2013, 6:00 AM EST 

Judges in several provinces are rebelling against the Conservative government’s attempt to make all convicted criminals pay a surcharge to fund victim services. The mandatory charge is a new flashpoint between the judiciary and the federal government. Two years ago, an Ontario Court judge opposed to The Truth in Sentencing Act – which ended two-for-one credit for pretrial detention – called on other judges to give shorter sentences to make up for harsh jailhouse conditions. The victim-services fine has sparked another backlash in the judiciary, now that judges can no longer waive the “victim fine surcharge” of up to $200 for impoverished offenders. In Ontario, British Columbia and Alberta, judges have either refused to order criminals to pay or have found creative ways around ordering the mandatory surcharge, such as giving an offender decades – even 99 years – to pay. Ontario Court Judge Stephen Hunter of Ottawa even ruled that the mandatory surcharge is unconstitutional, without being asked to do so by the defence. The Crown is appealing that ruling. There are no hard numbers on how many judges are refusing to apply the new law, which requires either a 30-per-cent surcharge on any fine levied, or if no fine is set, a flat fee of $100 or $200, depending on the seriousness of the offence. Ontario’s Ministry of the Attorney-General said it does not track victim-fine surcharges, and Associate Chief Justice Lise Maisonneuve of the Ontario Court would not provide an estimate. But lawyers in several jurisdictions say the opposition is widespread. In Kitchener, Ontario Court Justice Colin Westman is issuing $1 fines, resulting in a 30-cent surcharge, to any impoverished offender.

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