New federal legislation forcing judges to impose fines on offenders may be opposed in NWT

Daniel Campbell
Northern News Services
Published Monday, March 17, 2014

SOMBA K'E/YELLOWKNIFE
Federal legislation forcing judges to impose $100 to $200 surcharges on each offender's crime has been disputed by judges in several provinces, but is yet to be opposed here in the Northwest Territories.

Victims of crime surcharges in the NWT between April 2009 to March 2013 Total collected: $443,699 Total disbursed: $372,959 Beneficiaries: Native Women's Association of the NWT: $304,284 Status of Women Council of the NWT: $55,650 K'asho Got'ine Charter Community Council: $9,425 Training program, Compassion Fatigue: $3,600 Source: Department of Justice - GNWT

Prior to Oct. 24, 2013, judges across Canada could choose to charge offenders an extra $50 on top of their sentence, or 15 per cent of any fine they imposed. The money is intended to fund programs servicing the victims of crime in the communities and is administered by territorial and provincial governments.

Judges in the NWT often waived the fine if they felt the offender wouldn't be able to pay it off.

But the surcharges have now been made mandatory and doubled ­ or quadrupled in the case of indictable offences -- by the Conservative government.

Judges in the NWT, through a Justice Department spokesperson, declined to comment on the issue.

Caroline Wawzonek, chair of the Canadian Bar Association's criminal law branch in the NWT, said the mandatory surcharges take away a judge's discretion on sentencing.

"Give the judges who see these individuals ­ day-in, day-out -- the opportunity to impose that," she said.

Many offenders in the NWT are either unemployed and/or homeless.

"There are people for whom $100 is quite a burden," Wawzonek said

"They're not huge amounts, they're not onerous ... they become onerous only when someone is a vulnerable member of the community."

A month ago in Yellowknife, Deputy Judge Brian Bruser was obliged to fine a 27-year-old unemployed man $500 in victim of crime surcharges. His crimes were relatively minor: consuming alcohol against a court order, public mischief and showing up at his girlfriend's home who had a restraining order against him. The man admitted to an alcohol problem brought on by a troubled childhood.

In another case, a 32-year-old Yellowknife man who drove drunk twice while prohibited from doing so was handed $400 in surcharges by Judge Bernadette Schmaltz Feb. 27. Before sentencing, the man admitted to an alcohol problem and said he hadn't been able to find any work. Though Schmaltz was forced to impose the surcharge, she allowed him to exchange it for an extra five days in jail.

"These people aren't necessarily very dangerous but they have a number of challenges in life," Wawzonek said.

"So they wind up with a number of charges and convictions but they aren't in a position to pay that kind of money."

Judges in the NWT have been finding ways around the mandatory surcharge other than imposing jail time. Offenders whose crimes occurred before the legislation came into effect Oct. 24 have often had their surcharges waived if there's a hint they won't be able to pay. In addition, surcharges from Criminal Code or Controlled Drugs and Substances offences can now be worked off in the Justice Department's fine option program.

Each year the GNWT's Victims Assistance Fund collects upwards of $100,000 annually from court-imposed surcharges. They give out slightly less than that each year, with the majority going towards the Native Women's Association of the NWT and the Status of Women Council of the NWT.

A 2011 report on the department's victim services showed 82 per cent of clientele were female. Most of those using victims services in the NWT are either Dene or Inuit, at 64 per cent.

Wawzonek says so far there are no plans by NWT bar members to oppose the mandatory surcharges, since many matters in court still predate the change and are therefore not affected by the new legislation.

But she doesn't rule out challenges in the future.

"It may well be a matter of time before a client comes forward for whom the burden is simply inordinate."

At that time, Wawzonek said, the legislation is likely to be challenged in the NWT.