Article content continued

In his decision, Paciocco — who has authored books on criminal law and is considered one of Canada’s foremost experts on evidence — dismissed Crown arguments that the surcharge wasn’t a punishment so therefore couldn’t be found to be cruel and unusual.

[He] is being treated more harshly because of his poverty than someone who is wealthy

“All extrinsic sources confirm that the victim surcharge was enacted to make offenders pay for their crimes,” wrote Paciocco. The name of the law, the Increasing Offenders Accountability to Victims Act, and statements made by the justice minister and other politicians are “situating this legislation among tough-on-crime initiatives” designed to deter offenders and hold them responsible for their actions.

An offender’s ability to apply for an extension of time to pay the surcharge doesn’t reduce its disproportionate impact, Paciocco found.

The judge also took aim at the government’s decision to remove the judicial discretion that once allowed judges to waive the surcharge in cases where it would cause undue hardship.

“Making the victim surcharge mandatory is one solution to the failure of judges to impose it where it should be imposed. Another, one that keeps the baby after the bathwater has been thrown out, is for the Crown to appeal or seek to review decisions where the victim surcharge is inappropriately waived,” Paciocco wrote.

Michael’s lawyer, Stuart Konyer, called the decision “a victory for the rights of impoverished accused persons.”

“Given the number of different courts across the country which have now declared the victim surcharge amendments to be unconstitutional, it is time for the federal government to rewrite this law in a manner that complies with Charter standards,” said Konyer, who is also the president of the Defence Counsel Association of Ottawa.