The importance of judge shopping in politically driven Courts

By Andrew Seymour
Jan 10, 2015

 On a yellow slip of paper taped in the back of defence lawyer Karen Ann Reid’s day planner is a list.

One side has the initials of Ottawa judges who don’t impose what’s known as the victim surcharge; on the other side, the ones who do.

It’s Reid’s handy guide for submitting pleas for her poorest clients, ensuring she doesn’t inadvertently put them in front of a judge who imposes the controversial fee which was made mandatory by the Conservative government but swiftly rejected by some judges as unconstitutional.

“There are some clients of ours who can afford to pay victim fine surcharges and others who can’t,” says Reid, who isn’t alone in using the practice colloquially known in the corridors of the courthouse as “judge shopping.”

“Where you have a client who is poor, who is marginalized, who is living an existence on the streets, who is addicted, who perhaps is already wavering under a series of previously imposed victim fine surcharges and can’t possibly climb out from under that obligation through any legal means, are you going to then expose your client to even more of a burden?” asks Reid.

“Or are you going to strategize the plea so your client isn’t under a legal obligation to have to come up with funds that the client will never be able to amass?”

This is the state of justice at Ottawa’s Elgin Street courthouse, where the judiciary is nearly evenly split over whether to impose the surcharge, which is designed to help fund victim services while making offenders more accountable.

The situation is making a mess of criminal court cases, and with observers predicting that final constitutional clarity won’t be had until the surcharge fight goes all the way to the Supreme Court, it isn’t likely to be resolved anytime soon.

The fee is just the latest in a long line of Conservative tough-on-crime measures to be met with contempt by judges. But unlike previous battles that simmered in the lower courts before eventually being struck down by the Supreme Court, the mandatory surcharge led to an instant and open rebellion by the judiciary from the very moment it was passed into law on Oct. 24, 2013.

What makes the fight over the victim surcharge so interesting — and its ultimate resolution so important — is that it actually involves two distinct battles taking place on very different fronts. To begin with, there is a principled debate over how to balance the rights of victims against the need for fairness towards impoverished criminals. But overlaying this fight is a much more ideologically fraught political battle between the traditional independence of the judiciary (turbocharged by the Charter of Rights) on the one hand, and the conservative belief in the supremacy of Parliament and distrust of both judges and the charter on the other.

As University of Waterloo political science professor and constitutional expert Emmett MacFarlane sees it, in many ways the fight over the demands of justice is taking a back seat to the more political tussle over judicial autonomy.

“This issue has placed tension between the government and courts in a unique way," he says.

“As much as this is about the question of fairness with respect to the victim surcharge policy itself, I think this is also about judicial discretion. It kind of goes hand in hand with other issues like mandatory minimum sentencing.”

When the surcharge first came into effect, some judges flatly refused to impose it; others gave offenders decades to pay.

Some resorted to issuing nominal fines that reduced the surcharge to pennies.

Still others found offenders in default of the surcharge immediately after their guilty plea and sentenced them to concurrent jail time to sentences they were already receiving.

But it wasn’t until Ontario Court Justice David Paciocco delivered a carefully crafted 31-page decision declaring the surcharge unconstitutional that some judges felt they had the legal ammunition they needed to stop imposing it altogether.

That decision split the judges into two camps: those who were persuaded by Paciocco’s ruling that the surcharge violated the charter and should be of no force and effect, and those who either disagree with his reasoning or don’t believe they are legally entitled to follow it without hearing full constitutional arguments themselves.

Paciocco’s decision, and the rulings of the judges who have followed him, have set off a flurry of appeals.

The appeal of Paciocco’s ruling to the Ontario Superior Court won’t happen until the middle of this year at the earliest. Crown prosecutors hope to put an end to the widespread refusal to impose the surcharge based on Paciocco’s decision at another appeal hearing next month.

Those decisions will likely be temporary, however. Prosecutors, defence lawyers and legal observers are nearly unanimous in their belief the surcharge will end up in the Ontario Court of Appeal and eventually the Supreme Court. Until then, the situation in Ontario will remain murky.

“We’re at a place that is very confusing and it’s not great. Different judges have reached different conclusions and it makes for a complete mess once people come to court,” said Jonathan Rudin, program director at Aboriginal Legal Services in Toronto and an opponent of the one-size-fits-all approach he attributes to the surcharge.

“There needs to be some guidance on this and there really isn’t.”

The surcharge amounts to either $100 or $200 per conviction, depending on the severity of the offence, or an amount equal to 30 per cent of any fine imposed.

Rudin’s concern about the constitutionality of the law is centred on the removal of a judge’s discretion to waive the surcharge when it would create undue hardship for an offender.

The Conservative government took that away after complaints by victim groups that judges routinely didn’t impose the surcharge, particularly when an offender was headed to jail, without any serious inquiry about their ability to pay.

The Conservative mantra when it comes to the surcharge has remained consistent — offenders need to be held accountable, and ensuring they help pay for the damage they cause is the way to do that.

“When you have a mandatory fine like this, what it means is that poor people receive harsher sentences than rich people,” says Jackie Esmonde, a lawyer with the Income Security Advocacy Centre.

Esmonde says it creates a situation where two people can be convicted of exactly the same crimes and receive the exact same surcharges, but the amount could represent substantial income for one offender versus a few days’ income for a wealthier one.

That’s a violation of the charter, Esmonde argues.

Part of the trouble is that Ontario and two other provinces don’t offer a fine option program through which offenders can do community service in lieu of paying the surcharge.

Ontario currently has no intention of creating one.

“The court needs to be able to take into account people’s financial circumstances,” she says.