By: Andrew Seymour
An Ontario Court judge said Justice Minister Peter MacKay’s suggestion that poor criminals could sell their belongings to pay the government’s mandatory victim fine surcharge is disappointing, and suggested the minister spend some time in a courtroom.
“You have to understand these people have nothing. That’s the tragedy,” said Waterloo region Ontario Court Justice Colin Westman, one of many judges in Ontario who have
found ways to minimize the mandatory penalty by doling out small fines that reduce the mandatory victim fine surcharge to as little as 30 cents.
“I’m not trying to be a smart-alec here but I think someone has to remind the minister there are broken people here who don’t have anything to give.
“It’s a bully mentality. It’s kicking people while they are down,” Westman said Tuesday.
“The people we are dealing with, believe me, a high portion of them are just broken souls.”
Westman was reacting to a Citizen interview with MacKay Monday, when the justice minister suggested that the government’s victim fine surcharge wasn’t disproportionate or cruel and unusual punishment.
MacKay said poor offenders could pay the fine back over time or consider selling some of their belongings to pay off the debt.
The mandatory fine ranges from $100-200 depending on the severity of the offence or 30 per cent of any monetary fine.
The 70-year-old Westman, who has been a judge for nearly 24 years, said he respects MacKay’s opinion, “but he hasn’t seen what I’ve seen.”
Many poor offenders are victims themselves of psychological, physical or sexual abuse, mental illness and poverty, he said. To speak of a $200 or $300 fine as if it was nothing is “disgusting,” said Westman. “I think he’s a good man and he has a policy and this is the policy he has for whatever reason, but you know when you say things like that, that’s pretty mean-spirited,” said Westman. “Why doesn’t he come in a court and spend a day in a plea court where he sees the broken people and then ask himself whether the program he’s implemented makes sense.”
To date, Westman has been the only judge in the province to give media interviews about a mandatory surcharge he calls “an arbitrary fine set by someone sitting in Ottawa.”
“It’s an opinion based on my experience,” Westman said of his opposition. “We don’t do it just to be jerks. We do it because we are looking at someone who can’t pay. It’s not rocket science.”
Westman said he is speaking out for those “who can’t speak for themselves.”
Westman added he has tremendous empathy for victims, but “the accused is a human being too.”
“We also owe justice, not only to the victim, but the justice system is also based on doing justice to the accused. Retribution is appropriate. Revenge is not,” he said.
Westman was not alone in his criticism of MacKay’s comments Tuesday. Catherine Latimer, executive director of the John Howard Society, suggested it would be interesting if MacKay tried living on a disability pension for a few months.
“Many of the people who get in conflict with the law don’t have much in terms of their personal possessions. They are pretty reliant on charitable donations,” said Latimer. “For some of the more marginalized people, they don’t have possessions to sell. Nobody is going to want to buy their coat.”
“I think it’s out of touch with reality,” added Bryonie Baxter, executive director of the Elizabeth Fry Society.
“The reality for most of our clients is they have no belongings worth selling,” she said. “I really don’t know what he imagines they could sell. They don’t have cars and houses.”
Latimer said the John Howard Society opposed the mandatory victim fine surcharge at a parliamentary committee, arguing it is creating significant hardship for people who simply can’t afford to pay.
Latimer said she doesn’t believe anyone thought the consequences of the law through.
“It’s a mess, quite frankly,” Latimer said of the current situation. “It’s very unwise to take a marginalized person who has no visible means of support and may well be a sex trade worker or something like that and tell them to come up with money.”
A spokesman for MacKay said the minister stands by his comments Tuesday. “Our government remains steadfast in our commitment to giving victims a more effective voice in the justice system - and this surcharge is a part of that,” Paloma Aguilar wrote in an email.
Emmett Macfarlane, an assistant professor of political science at the University of Waterloo, said there may be an element of “callousness” to some of MacKay’s rhetoric, but sitting judges shouldn’t be commenting.
“It’s not for a judge in this country to respond to that,” said Macfarlane. “For the most part it is traditionally viewed as not proper for a judge to get involved in politics in this way.”
Whether the mandatory victim fine surcharge violates a person’s Charter rights is an “open question,” Macfarlane said. Until it is decided, judges should follow the law.
“Not liking the policy and having this kind of gut, moral reaction and then claiming to be upholding justice or the rule of a law is actually a distortion of what those principles are and is really a flagrant violation of the judges role,” he said. “It is not up to a judge to determine which laws they apply and which ones they do not. That’s a political decision, it’s a policy debate that Justice Westman is involving himself in and I think it is highly inappropriate.”
Westman said he understands the criticism, “but there are things that come along in life that you just have to stand up for.”
“I feel this is so fundamentally wrong,” said Westman. “It’s not about Justice Minister MacKay. It’s about justice in the courtroom.”
But Westman conceded the issue also has to do with the removal of judicial discretion and independence. “Did they show respect for us when they took away that discretion?” asked Westman.
“What is behind all that, he didn’t like what we were doing? We’re the judges, trust us. I don’t know a judge who doesn’t want to do justice in the courtroom. Trust our judgment, you’ve hired us to do that. We’re capable apparently of determining whether a person is guilty or innocent of anything in the provincial court right up to manslaughter and we’re capable in using our discretion imposing sentences from suspended sentences to life imprisonment,” said Westman.
“Respect goes both ways.”
Caption: Adrian Wyld, The Canadian Press / Justice Minister Peter MacKay, above, should spend a day in a plea court to see the broken people, judge Colin Westman said.;