An Ottawa lawyer wants the Ontario government to give back millions of dollars collected through mandatory victim surcharges, which the Supreme Court of Canada last December described as "cruel and unusual punishment."

Defence lawyer Michael Spratt, a partner at Abergel Goldstein and Partners, filed an application Thursday under the rules of civil procedure and the Charter of Rights and Freedoms against the attorneys general of Ontario and Canada.

In addition to calling for restitution of all fines collected since 2013 under what Spratt called an "unconstitutional regime," the application seeks to cancel all victim surcharges imposed — many of which have never been paid.

Spratt said that aspect of the application is the most meaningful, because it deals directly with the problems laid out by the Supreme Court last year when it quashed the mandatory victim surcharges for convicted criminals — a fine one Ontario judge referred to as a "tax on broken souls."

Many offenders are too poor to pay the fine, but the outstanding debts hang over their heads for years and can affect their ability to renew driver's licences or obtain good credit scores, which can prevent them from securing stable housing, Spratt said.

"These are clients who are already struggling," he said. "They know there is a debt they will never be able to pay off. It makes them feel less a member of society and less worthy of being included."

Millions collected since 1989

The federal victim surcharge was introduced in 1989 as a way to make offenders more accountable and to offset some of the costs of funding victims' programs and services.

Before 2013, judges could waive the fine if the offender was poor — but the Conservative government of the day made it mandatory and doubled the amount judges were required to impose.

In its Criminal Code reforms introduced in Bill C-75, which received royal assent in June, the Liberal government moved to give judges back greater discretion in imposing the surcharge — a response to the Supreme Court decision.

Each province and territory is responsible for collecting the surcharge.

The latest available victim surcharge data come from the 2016 Federal Victim Surcharge report, which showed the total of victim surcharges collected in nine jurisdictions for the fiscal year 2014-2015 exceeded $10 million. Almost a third of that amount — $3.2 million — was collected in Ontario.

Tulips bloom outside the Supreme Court of Canada in Ottawa on Friday, May 24, 2019. (Sean Kilpatrick/Canadian Press)

Under Section 737 of the Criminal Code — which the Supreme Court struck down in its entirety — a convicted offender was forced to pay a victim surcharge equal to 30 per cent of any fine ordered by the court.

If no fine was imposed, the surcharge would be $100 for a lesser offence and $200 for a more serious offence. The court also could charge a higher fee if it considered it appropriate, and if the offender had the means to pay the higher amount.

Under the 2013 rules making the surcharge mandatory, judges had no discretion to waive or decrease the surcharge. "Judges always had to impose the surcharge, regardless of the offence's severity, its effects on the victims or the offender's characteristics," Spratt's application says.

Too poor to pay

Spratt filed the application on behalf of three clients: William Evans-Bougeault, Serge Parent and Tommy Saila.

Evans-Bougeault was a student with no criminal record when he was given a conditional sentence and probation in January 2018 in relation to eight counts of assault. He paid a mandatory victim surcharge of $800.

Both Parent and Saila have experienced addictions and homelessness throughout their lives, the application says. Parent has a lengthy criminal record. He has never paid the approximately $1,800 in surcharges imposed by courts between 2013 and 2018.

Saila also has a criminal record and has never paid the approximately $4,000 in victim surcharges imposed between 2015 and 2018.

In its December ruling, the Supreme Court recognized that people in situations similar to those of Parent and Saila, who are unable to pay the surcharge, face an indeterminate sentence.

"There is no possibility of them ever being able to pay the amounts owed because of their circumstances: poverty, addiction or mental health issues," the application says.

The Canadian Civil Liberties Association welcomed Spratt's application.

"I think it's important that people who have been subject to this unconstitutional fine can have a remedy for it and don't have to have it hanging over their heads for the rest of their lives," said Cara Zwibel, a CCLA lawyer.

A hearing date for Spratt's application will be set in September.