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When the Increasing Offenders’ Accountability for Victims Act came into effect in the fall of 2013, no one seemed to notice. It amended a little-known section of the Criminal Code which helped fund provincial victim services — and to which no one paid much attention for years.

Then all hell broke loose.

The bill doubled victim surcharges and made them mandatory. In the past, judges had the discretion to waive the surcharges if the offender could not pay. As soon as the ink dried on the new law, judges began finding ways around it.

They gave offenders decades to pay a $100 surcharge, or they refused to order a surcharge, or they gave the offender a $1 fine so that the surcharge was only 30 cents. Some invited defence lawyers to challenge the constitutionality of the new law. Others didn’t even wait for a challenge and ruled it unconstitutional anyway. The media reported on case after case of homeless offenders, people living on small disability pensions and those suffering from mental illness being ordered to pay hundreds of dollars in surcharges. It was chaos.

Challenges are already underway. Like so many of the Tory crime laws, this one will end up in the Supreme Court. And like so many other Tory crime laws, it’s likely to die there.

Let’s end the madness now, before we waste a lot of money to collect chickenfeed. Take the case of Richard Cloud, who was charged with mischief to property not exceeding $5,000 and assault with a weapon after he knocked over a display in a convenience store in Montreal and struck someone with a stone. For those offences — only one of which involved a real live victim who might access victim services — Mr. Cloud would be required to pay $400.

Consider what this cost: days of court time, the judge’s time (which included writing a 25-page ruling), the Crown’s time, the defence lawyer’s time, the clerk’s time, etc. And at the end of it, some lucky victims’ service agency in Quebec will be $3 richer.

He had $5 in his pocket. He does not have a job or a bank account. He is on social assistance and gets a small amount from his band council. He has no fixed address and at the time he was living with on his cousin’s couch. He is an alcoholic and has been in and out of prison for the last 22 years.

The defence and Crown agreed on a sentence but they made no mention of the surcharge, so the judge adjourned the sentencing for three weeks to allow them to make submissions. The hearing lasted two days and, at the end of it, the judge gave Mr. Cloud a $5 fine — which meant the surcharge was only $1.50 for each offence.

Consider what this cost: days of court time, the judge’s time (which included writing a 25-page ruling), the Crown’s time, the defence lawyer’s time, the clerk’s time, etc. And at the end of it, some lucky victims’ service agency in Quebec will be $3 richer.

The old law did not work — everyone acknowledges that now — but the new law doesn’t seem to be working well either. Three dollars in surcharges from an offender who only has $5 to his name — this can’t be what the government had in mind.

It is time for the Tory government to retreat on the surcharge law and avoid a long and costly battle that they’re very likely to lose. They’re unlikely to do so, of course, and they have the support of the current federal ombudsman for victims of crime, who points out that the old system was a failure. Fair enough … but who is the new law working for? Not the homeless, who face a higher risk of being victimized than they are of victimizing someone else. Not someone living on a disability pension who can barely afford to eat. And not victim services which, at least according to the Ontario government, should not expect any new money. Some agencies in Ontario are facing severe cuts by the Ontario government. (Full disclosure — I work for such an agency.)

Let’s get ahead of this, admit both sides made mistakes and work on a surcharge law that works for everyone. I even have a name for it: Increasing Government Accountability to Victims of Crime. The premise of the bill would be that governments should stop funding victim services on the backs of offenders.

Politicians don’t base police or prison budgets — both of which seem to continue to grow — on what offenders can afford to pay. Why should victims’ services be any different? That’s assuming victims of crime matter to the government — and aren’t just being used as political props.

Steve Sullivan has been advocating for victims for almost 20 years, having served as the former president of the Canadian Resource Centre for Victims of Crime and as the first federal ombudsman for victims of crime. He has testified before numerous parliamentary committees on victims’ rights, justice reform and public safety issues and has conducted training for provincial and federal victim services. He is currently the executive director of Ottawa Victim Services and a part-time professor at Algonquin College in the Victimology Graduate Certificate Program. His views are his own and do not represent any agency with which he is associated.

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