B.C. judges afraid of imposing "undue hardship" on criminals

B.C. judges fail to make offenders shell out Joey Thompson, The ProvincePublished: Friday, September 05, 2008

Amy Huang likely considered the $1,125 crime victim surcharge imposed by the judge as a small price for her sins.

The amount was miniscule compared to the $24,500 her bawdy house -- run under the cover of an on-the-level massage parlour in Surrey -- generated in weekly revenue.

But if truth be told, the 42-year-old mom had to shell out much more than most: According to a tally by yours truly, offenders are being excused from having to pay the tariff roughly 84 per cent of the time.

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In other words, our judges charge the fee in only about 16 per cent of eligible cases, even though all offenders are supposed to pony up, in addition to fines or time in jail.

The only exception is if the offender satisfies the court that the fee (15 per cent of a fine, or up to $100 where jail or a conditional sentencing is involved) would cause undue hardship to himself or his family.

Judges who buy that argument, and subsequently waive the victim-of-crime surcharge, are required by the Criminal Code to explain why.

And they're not doing that either, according to the databank of sentencing transcripts on the B.C. government's provincial court website.

I reviewed all the online provincial sentencing decisions for this year and last and found the situation here even more deplorable than in New Brunswick, where a recent study found the services for victims of crime were running on empty because judges had waived the fee at least two-thirds of the time. Nor did they explain their clemency, although required by law.

Ditto here: Not only are our sentencing judges ignoring the must-do order Parliament passed 10 years ago, but their remarks suggest many are missing the point -- they don't get the purpose of a crime victims' tax in the first place.

In fact, the comments suggest some aren't even familiar with the wording of Section 737 of the code.

Despite the law, nowhere in the records of proceedings did I find any meaningful discussion between prosecutor, defence and judge about a criminal's ability to pay -- not even when the culprit was a drug trafficker, bank robber, scam artist, grow-op farmer or scrap metal thief: lucrative crimes that can put extra bucks in the bad guy's pocket.

Indeed, in the majority of eligible cases, judges breezily dismissed the victim tariff without even running the idea past the lawyers first.

Exemptions were rarely explained, but when provided, they indicated an alarming ignorance of the law.

For example, the surcharge is to be imposed automatically in addition to any fines or jail time, yet many Lower Mainland judges used the sentencing terms as a means to let the offender off the hook.

"Because of the time in custody, I will waive the surcharge," a provincial court judge told an offender.

"The surcharge is not appropriate given [you are] going to prison," a judge told a mutual fund shyster convicted of five counts of stealing from his clients.

"Going to jail will reduce your income," another judge explained as he set aside the victim surcharge.

Vancouver Provincial Court sentencing judge Mark Takahashi even took pity on former teacher Tom Ellison, convicted of multiple counts of indecent assault of high- school students: "This matter has put extreme financial stress upon you and in those circumstances I find that a victim fine surcharge would be inappropriate," he told the adventure-tour guide, who is the current owner of a 22-metre yacht worth more than $1 million.