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Debra Parkes @DebraParkes
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I don't rave about #SCC decisions often, but the majority opinion of Martin J in #Boudreault deserves our attention. Mandatory victim fine surcharge declared invalid with immediate effect. A few thoughts to follow.…
The mandatory victim fine surcharge, one of many Harper-era punitive laws, is cruel and unusual punishment contrary to s. 12 of the Charter, not saved by s. 1. #Boudreault
Martin J easily vanquished the argument put forward by some AGs that the mandatory victim fine surcharge (MVFS) was not "punishment" for purposes of s. 12. #Boudreault
Imposing these victim fine surcharges on poor people forces a judge to impose grossly disproportionate sentences. 4 interrelated harms: deeply disproportionate financial consequences, threat of incarceration, target of prov collection efforts, de facto indeterminate sentence
After Nur #SCC decision holding that proportionality is not a principle of fundamental in sentencing (boo), proportionality looms large in Martin J's reasoning. MVFS disregards proportionality by wrongly elevating one the promotion of personal responsibility over objectives
"Sentencing is first and foremost an individualized exercise." Building on #Nur and #Lloyd, further evidence that judicial discretion in sentencing is core to our sentencing regime.
Martin J also highlights the disproportionate harms of the MVFS on Indigenous people and others who are poor, marginalized. Important to argue this in every case. #Boudreault
s. 12 violation not saved by s. 1. Martin J did not go so far as to accept the @bccla argumenthat a s. 12 violation can NEVER be saved by s. 1, but we are getting closer to that point. IMO no principled arg that a cruel and unusual punish't will be minimally impairing of rights
@bccla However, most important part of the decision is arguably the remedy. Martin J forcefully rejects arguments for a delayed declaration of invalidity. *Cheering* Delayed declarations have become all too common in the name of dialogue between courts and legislatures. #Boudreault
@bccla Martin J goes back to Manitoba Languages Ref for the test that we have rarely seen figure in recent cases: Govt "has not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law." *Still cheering*
@bccla This is important. @DeanLeckey @BBRyder and others have highlighted the problematic easy acceptance of the suspended declaration of invalidity in recent years. See, e.g.,…. #Boudreault signals a shift, at least for Martin J and those who signed on.
@bccla @DeanLeckey @BBRyder Finally a word about the dissent by Côté and Rowe JJ who found no s. 12 violation. The dissent's reasoning is breathtakingly out-of-touch with the realities of poverty, criminalization and marginalization. #Boudreault
@bccla @DeanLeckey @BBRyder The MVFS is described as unproblematic (para 137) but that is entirely inconsistent with the reality of how impossible it is for a poor person to pay anything like the $100s of dollars required under this regime.
@bccla @DeanLeckey @BBRyder See the terrific submissions by @pivotlegal, Yukon Legal Services, and others in #Boudreault for a reality check on the impact of these laws.… Martin J fundamentally gets it: this law amounts to public shaming and punishment for being poor. Good riddance.
@bccla @DeanLeckey @BBRyder @pivotlegal One final point: we are desperately in need of principled sentencing reform in this country. This piecemeal striking down of one harmful punitive law after another is legitimate and required in our democratic constitutional order, but it is not the way to make sentencing policy.
@bccla @DeanLeckey @BBRyder @pivotlegal An immediate, short-term step would be to pass @KPateontheHill Bill S-251…, introducing judicial discretion to craft a fit sentence into ALL sentencing decisions (no more MMS).
@bccla @DeanLeckey @BBRyder @pivotlegal But a more fundamental re-think of our sentencing principles is urgently needed. A great place to start is with this terrific piece by @MEveSylvestre “Moving Towards a Minimalist and Transformative Criminal Justice System.” The end.
@bccla @DeanLeckey @BBRyder @pivotlegal @KPateontheHill But a more fundamental re-think of our sentencing principles is urgently needed. A great place to start is with this terrific piece by @MEveSylvestre
“Moving Towards a Minimalist and Transformative Criminal Justice System.” The end.
@bccla @DeanLeckey @BBRyder @pivotlegal @KPateontheHill @MEveSylvestre Ok. Here's that link to M-E's piece… Apparently I can't Twitter today.
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