That’s the decision issued Monday at the British Columbia Provincial Court in R. v. Barinecutt — a Charter challenge brought by a homeless man who pleaded guilty to breaking a restraining order but claimed he could not pay the mandatory victim surcharge.
Introduced in 1989, victim surcharges require criminals, as a part of their sentence, to pay a small fine that is then funneled into victim services. However, an exemption in the law allowed judges to waive the fine where it created undue hardship.
The federal government’s tough-on-crime agenda led to an amendment in 2013 that removed the exemption, and judges across the country have been trying to circumvent or challenge the law ever since.
David Fai, defence counsel for Bruce Barinecutt, says the courts in B.C. have found creative — and likely illegal — ways to bypass the legislation.
“Remember that the provincial courthouse in Vancouver is in the downtown eastside of the city, which people jokingly refer to as the poorest postal code in Canada, so most of the clients that go through there don’t have the ability to pay,” he says.
“I would say 85 per cent of the judges here are routinely finding the victim surcharge payable forthwith and [sentencing them to] one day in default — and that one day being time served by coming to court. So it’s not being ordered in most cases here in Vancouver.”
Fai says he relied on the 2014 Ontario case R. v. Michael to argue that his client’s inability to pay the fine left him in a state of criminalization that would hang over his head in perpetuity, thereby violating his Charter rights to security and liberty.
“The way this legislation is set up, it never extinguishes until it’s paid, so the criminalized consequences continue,” he says.
“Obviously, if the person never pays, they’ll constantly have this over their head, that at any moment the Crown might decide, ‘Oh well, I’ll bring an application for a warrant of committal and then you’ll have to show that you don’t have an ability to pay.’ And even then it doesn’t extinguish.”
It’s an argument Judge Donna Senniw found convincing. In her decision, the judge draws a neat parallel between the right to be tried within a reasonable time frame and the right to be able to discharge oneself of one’s obligations:
“The ‘overlong subjection to the vexations and vicissitudes of a pending criminal accusation’ which includes stigmatization, possible disruption of family, social life and work, and uncertainty as to outcome and sanction, apply to some degree to Mr. Barinecutt although he is not facing a possible criminal sanction.”
Senniw’s decision also supports the determination in Michael that the mandatory victim surcharge is, in fact, a punishment — not a form of restitution — that, because of its mandatory and fixed nature, can become “grossly disproportionate” in the event the offender is unable to pay.
As a result, the $200 fine imposed on Barinecutt amounts to “cruel and unusual punishment” and a violation of his s. 12 Charter rights:
“The payment of a fixed amount for each of all summary and all indictable offences where a fine is not imposed would on its face offend the principle of proportionality in sentencing.
“An additional $200 penalty may be an appropriate and just sanction for many offenders, but the impact on Mr. Barinecutt or any like-situated offender is grossly disproportionate to the law.”
Given inconsistent rulings in recent years, Fai thinks it’s inevitable that the appeal courts, and likely the Supreme Court of Canada, will be called upon to rule on the constitutionality of these surcharges.