Supreme Court strikes down 'cruel and unusual' mandatory victim surcharge

December 14, 2018

Information from Income Security Advocacy Centre (ISAC): In a landmark group of cases, the Supreme Court today struck down the mandatory victim surcharge, finding that it was cruel and unusual in its effects on people living in poverty.

The mandatory victim surcharge requires every person who is convicted of a criminal offence in Canada to pay a fine as part of their sentence, regardless of whether they can afford to pay it. The mandatory fine is very difficult for people living in poverty. Failure to pay the fine can have very serious consequences, including going to jail. Those who are not poor and can afford to pay do not face these same hardships.

Social assistance rates across Canada and in Ontario are very low. As a result, people receiving social assistance can be very harshly affected by the mandatory victim surcharge.

Colour of Poverty-Colour of Change and the Income Security Advocacy Centre intervened in the four cases as a coalition.

Avvy Go from the Chinese and Southeast Asian Legal Clinic and Shalini Konanur from the South Asian Legal Clinic of Ontario co-counselled with the Income Security Advocacy Centre in this important case.

"The mandatory victim surcharge has its harshest impacts on the racialized groups that are over-represented in the criminal justice system and have higher rates of poverty," said Shalini Konanur, executive director of the South Asian Legal Clinic of Ontario. "Not only does it perpetuate racism and inequality within the criminal justice system, it also reinforces the inequality of poverty for these same groups."

In its judgment, the Supreme Court found that for poor people, the mandatory victim surcharge amounts to a sentence with no predictable end, and possibly no end at all. It has a significant impact on the liberty, security, equality and dignity of those who lack the means to pay the fine. The Court compared the process to a "public shaming" of impoverished people and described it as "an abhorrent an intolerable punishment" for "the poorest individuals among us."

"The Supreme Court's decision makes the essential point that mandatory fines impose a different system of justice for the rich and the poor," said Jackie Esmonde, staff lawyer with the Income Security Advocacy Centre. "It is long past time for the federal government to abolish all of the mandatory minimums in the Criminal Code, which have only deepened inequality in this country."

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