In the recent case of R v Boudreault, the Supreme Court of Canada took a step in the right direction for the rehabilitation of disadvantaged offenders. Prior to this decision, section 737 of the Criminal Code stated that anyone found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act was required to pay a mandatory victim surcharge to the state, no matter the seriousness of the offence. The amount of this fee was 30% of the fine imposed or, where there was no fine, $100 or $200 per charge depending on whether it was a summary conviction or an indictable offence. The provision was found to infringe section 12 of the Charter, which states that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. The court went on to find that it was not justified or saved under section 1 of the Charter.
While these fees may seem inconsequential to some, to disadvantaged and marginalized offenders their payment may simply be impossible. In examining both the individuals involved in the case and the “hypothetical man”, the Supreme Court took note of the similarities between them. These similarities include living in poverty, struggling with addiction and some suffering from mental illness. Their inability to pay the victim surcharge can have the ultimate effect of creating an indeterminate criminal sanction. The court noted that the surcharge only served to further stigmatize and public shame the disadvantaged offenders. In the words of the court, “Put simply in our free and democratic society, it is cruel and it is unusual.”
Criminal offenders in Canada often face substantial barriers to their re-integration into society. This is especially true of offenders struggling with the problems outlined above. Criminal offenders commonly experience the criminal justice system as a revolving door, characterized by a repeated cycle of exiting and re-entering the system. Correctional Services Canada estimates that approximately 80% of women prisoners and 90% of male prisoners have a prior conviction.1 This statistic, together with the fact that 70% of the individuals who come in contact with the criminal justice system in Canada meet the criteria for mental illness or substance abuse, demonstrates that change is long overdue.2
The court in Boudreault correctly noted that, although programs promoting reintegration exist, those struggling with mental illness, addiction or poverty often have difficulty accessing or keeping up with such programs. Without addressing the underlying conditions and root causes of criminal behaviour, the revolving door will continue to turn. Not only do programs need to change but so too does the criminal justice system at large. Other mandatory minimum forms of punishment must also be eliminated. Mandatory minimums remove from judges the ability to exercise discretion and examine each offender’s circumstances and life experiences in fashioning the appropriate punishment. Greater judicial discretion would also involve moving away from a simple fixation on guilt or innocence toward an approach that focuses on compassion and understanding for both the victim and the offender. While it is easy to say that criminal offenders are the authors of their own misfortune and responsible for the consequences that follow, it is important to take a deeper look at the complex social, psychological and economic factors at play.
While the court was correct in noting that programs that assist victims of crime serve a valid public purpose, this purpose must be balanced against the need to support the important goals of rehabilitation and reintegration. This can only be achieved if offenders have the resources necessary to escape the revolving door and truly reintegrate into society. In the absence of such resources, offenders will continue to serve what amount to indeterminate sentences. In striking down section 737 of the Criminal Code, the Supreme Court clearly signalled that such cruel and unusual punishment ought not be tolerated in a just and civilized society.
Although the decision in Boudreault represents significant progress, the court arguably missed an opportunity to provide additional guidance on how true rehabilitation and reintegration can be realized. As overall awareness of mental illness, substance abuse and poverty increase, the legal system needs to evolve accordingly. Hopefully, further changes benefiting all citizens - including criminal offenders who have already paid for their crimes - will follow shortly.
1 Jamil Malakieh, “Adult and youth correctional statistics in Canada, 2016/2017” (last modified 29 June 2018), online: Statistics Canada <https://www150.statcan.gc.ca/n1/pub/85-002-x/2018001/article/54972-eng.htm> [https://perma.cc/3KQ6-LJUC].
2 “What we heard - Transforming Canada’s criminal justice system” (last modified 27 March 2018), online: Canada Department of Justice <https://www.justice.gc.ca/eng/rp-pr/other-autre/tcjs-tsjp/p1.html> [https://perma.cc/VCG8-Z7XE].