The Candid Review: A Blog About Appeals

Lincoln Caylor, the co-author of a paper titled Parliamentary restrictions on judicial discretion in sentencing: A defense of minimum mandatory sentences urges Judges who find ways to circumvent minimum sentencing laws to resign as judges and run for Parliament instead. It has been reported that Canadian judges are finding ways to avoid applying mandatory minimum sentencing laws or victim surcharges. Victim surcharges are additional penalties that are imposed on convicted defendants at the time of sentencing. The surcharge is typically retained by the local government and used to help fund programs for victims of the crime in the territory where the crime occurred. Canadian Judges do not have the authority to waive these surcharges, however some Ontario Judges have found a way to work around the legislation by allowing the convicted defendant to take 50 years to pay the fine or not requiring him/her to pay it at all. Caylor and his co-author Gannon Beaulne argue that mandatory minimum sentences create consistency and help people understand what the consequences of committing a particular crime is. They further claim “judicial discretion in sentencing has never meant unfettered entitlement to impose any sentence deemed appropriate by a particular judge. On the other hand, critics of mandatory minimum sentences disagree.

Critics Argue that Judges Should Have Broader Discretion

Critics who are against mandatory minimum sentences argue that a judge should have all of the discretion. Anthony Moustacalis, the president of the Criminal Lawyers Association, points out that 80% of the perpetrators who get caught for crimes may have mental health or addiction issues and dont expect to be caught, and therefore are unable to weigh the consequences of their actions. He further argues that these people need a broader approach toward their treatment and punishment rather than simply imposing mandatory minimums. In response, Caylor and Beaulne point out that they are not evaluating the appropriateness of the current mandatory minimum sentencing laws but instead are emphasizing a judges obligation to uphold them. The cusp of their argument is that if judges disagree with the mandatory minimums they should find the law unconstitutional rather than just ignore them.

Judge Finds Victim Surcharge Unconstitutional

In a recent case, Tinker v. The Queen, Ontario Court Justice Robert Beninger held that a mandatory victim surcharge that does not take into consideration the offenders personal circumstance was unconstitutional. In Tinker, four defendants challenged the portion of the criminal code that made the imposition of victim surcharges mandatory.  Under S. 737(3), the surcharge cannot be waived and it if it is not paid within a fixed time, the offender will be jailed. Justice Beninger held that in my view, an extended enforcement procedure for a $100 surcharge, targeting a person who has no ability to pay, is not a proceeding which enhances the criminal justice system in the eyes of the community. He then declared two sections of S.737 to be of no force and effect. However, the Ottawa Supreme Court eventually overturned Beningers ruling and found that judges could not interfere with mandatory victim surcharge law.

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