Victim surcharge won't make homeless offender more accountable, B.C. judge says

A B.C. provincial court judge says violating a homeless man's charter rights by forcing him to pay a $200 victim surcharge won't make impoverished offenders more accountable to victims.

In a ruling released Monday, Judge Donna Senniw said she couldn't find any justification for imposing a mandatory fine on an impoverished man who breached the terms of his release.

The Conservative government made the victim surcharge mandatory in 2013 as part of its tough-on-crime agenda; Senniw ruled last summer that change was unconstitutional.

But in her latest ruling, she found the violation couldn't be justified under Section 1 of the Charter of Rights and Freedoms that says an infringement of a person's rights may be allowed if it meets the objectives of a law.

"If an offender has no ability to pay the surcharge, it is difficult to envision how it could promote accountability, let alone raise money for victim services," Senniw wrote.

"It is irrational to impose a mandatory payment on an individual with no prospect of payment, for whom attachment of government benefits would create a hardship and where a government administration would expend time, effort and monies to collect such mandatory payment."

The mandatory nature of the victim surcharge has a grossly disproportionate impact- Donna Senniw, B.C. provincial court judge

The accused in the case, Bruce Barinecutt, is a 32-year-old with serious cognitive challenges who was raised in government care and physically and sexually abused as a child.

His criminal history began at 19. He has HIV and hepatitis C, as well as drug and alcohol problems that have resulted in more than 60 criminal convictions and a life with no fixed address.

The offences that gave rise to the charter challenge were two breaches of an undertaking that occurred in February 2014. The undertaking was imposed after an allegation of assault.

Barinecutt was not supposed to be within a two-block radius of the First United Church, the downtown eastside homeless shelter where the assault took place.

He pleaded guilty to breaching the undertaking and was automatically given two $100 victim surcharges.

'Grossly disproportionate'

First introduced in 1989, the victim surcharge is nothing new. But prior to 2013, judges had the ability to waive the fine in cases of undue hardship.

According to evidence introduced as part of Barinecutt's defence, the charge was only imposed 32 per cent of the time in B.C. prior to the change in legislation.

Senniw found the charge violated Barinecutt's right to liberty as well as his right not to be subjected to cruel and unusual punishment because it saddled him with a debt he couldn't hope to pay.

In considering whether the violation might be justified, Senniw said the objectives of the victim surcharge are laudable: making offenders accountable to victims and generating money for victim services.

But she said the harm imposed by the fine on impoverished offenders like Barinecutt would be greater than the good that would be achieved.

"The mandatory nature of the victim surcharge has a grossly disproportionate impact on numerous classes of disadvantaged offenders, and so the impact of the law on protected rights, outweighs the beneficial effect of the law considering the public good," Senniw wrote.

"It is unfair to offenders who, as a result of a number and variety of individual, social and systemic reasons, have no ability to pay, nor any future prospect of an ability to pay."

Barinecutt's lawyer, David Fai, says the ruling is important for the Downtown Eastside, where judges have been uncomfortable with the idea of imposing fines on an impoverished population.

"It's just an example of our government bringing in laws that it knows will not pass constitutional challenge," he said. "They're governing not based on legal opinions or evidence, but on certain opinions aimed at a political base."

Senniw doesn't have the jurisdiction to strike down the law. Her ruling will apply to Barinecutt only, but it will serve as precedent for other cases.

But the decision comes against a backdrop of conflicting rulings on the mandatory victim surcharge. Last year:

• An Ontario Court of Justice ruling found the law to be a "roving punishment" that was cruel and unusual.
• An Ontario Superior Court judge upheld the law, finding that the mandatory surcharge was "not grossly disproportionate."

The issue is ultimately expected to end up at the Supreme Court of Canada.

Read Judge Senniw's decision.