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Page 4 November 18, 2013 Law Times • NEWS Federal government defends surcharge as revenue source Continued from page 1 decision at the beginning?" he adds. "It just makes no sense to me," he notes, adding it's a known fact that more than half of the people coming before the criminal courts are on welfare. Criminal lawyer Jeff Manishen says the government made the move without evidence that the existing way of imposing victim surcharges wasn't working. "What was the basis for making this change in the Criminal Code? What was the identified need?" he asks. Judges, says Manishen, always had to determine whether the offender could afford the fee and would order it when they found it was appropriate. "What was wrong with that? What was so unjust about that?" According to Justice Minister Peter MacKay, the government is "sending a signal" that offenders must pay victims for the damage they caused. In an announcement, Minister of Public Safety Steven Blaney said: "Canadians deserve a justice system that sentences offenders in a way that reflects the severity of their crime and respects victims of crime. "By making the surcharge mandatory, the Increasing Offenders' Accountability for Victims Act ensures that all offenders are held responsible for their actions." Toronto criminal lawyer Brian Ross of Rusonik O'Connor Robbins Ross Gorham & Angelini LLP says he takes issue with Blaney's suggestion that the surcharge reflects the severity of crimes. If a person convicted of a crime gets a $50 fine, 30 per cent of that amount will be about $15, says Ross. But if the court imposes a more lenient conditional discharge with no fine, the person ultimately ends up paying $100, he notes. When judges waived the surcharge in the past, it wasn't on the basis of avoiding accountability, Ross adds. The mandatory surcharge "really is ridiculous" he says. "It limits judges' discretion and anything that limits a trial judge's discretion, most criminal lawyers — certainly myself — are going to be against [it]." When it comes to stiffer crime laws, the judiciary also dealt the government a blow last week when the Ontario Court of Appeal decided that the three-year mandatory minimum sentence for gun crimes was unconstitutional. The mandatory sentence amounts to "cruel and unusual" punishment, the court said, noting the law would encompass people facing charges as minor as licence violations. "No system of criminal justice that would resort to punishments that 'outrage standards of decency' in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry," the appeal court said in R. v. Nur. The ruling shows that "a one-size-fits-all approach doesn't work for the sentencing of individuals," says Ross. "Judges must maintain their discretion to apply the appropriate factors appropriately," he adds, noting the court's decision "recognizes that judges can and should be trusted to pass an appropriate sentence. Obviously, if a particular sentence is demonstrably unfit, it can be appealed." When it comes to victim surcharge fines, the Justice Department said it couldn't comment on whether it would appeal cases where judges have waived the levy or given the offender a long period of time to pay it. "The federal minister of justice will not comment on the correctness or incorrectness of decisions currently before the courts. If and when the federal government becomes party to any appeal, the government will state its position at that time," said McKay spokeswoman Paloma Aguilar. Aguilar also touted the mandatory surcharge as a source of revenue for victims' services. "The victim surcharge amendments imposed by [Bill] C-37 build on our government's commitment to victims and will provide increased revenues to provinces and territories in support of their delivery of victims' services," she told Law Times.  The absence of a fine option program in Ontario is a provincial issue, she noted. The mandatory surcharge will only apply to crimes committed after the legislation came into force. LT Fellow judges criticized for 'wordy' reasons Continued from page 1 plaintiffs' counsel routinely face voluminous documentation and transcripts. "Defendants, especially global companies, usually fight certification very hard," says Kim. "I have cases where the motions record alone consists of some 14 or 15 volumes of material. If we reply with only a minimal response to that, the case will soon be over." It's an argument Belobaba's reasons show little sympathy for. "Normally, costs awards are routine and can be easily adjudicated," he wrote. "Not so in the world of certification motions. Here, excess appears to be the norm in every aspect of the proceeding — in the amount of time spent by legal counsel, the volume of material filed with the court, the number of days scheduled for the oral hearing, and the over-litigation of most issues. No wonder, then, that the costs that are typically sought by the successful party are in the hundreds of thousands of dollars. No wonder, also, that the number of class actions on an annual basis is declining." As hard as he is on counsel, Belobaba doesn't spare his fellow judges as he suggests that the reasons given in many costs awards are "wordy, use unreliable metrics, and are analytically unclear." In fact, Belobaba says most lawyers on both sides of the class action bar are in agreement that a nocosts rule would "be much more Join Us to Celebrate The Future of Advocacy The Advocates' Society 50th Anniversary Symposium December 4 th , 2013 9:00 am - 4:30 pm Metro Toronto Convention Centre, Toronto The Advocates' Society is celebrating its 50th anniversary! We invite you to join us as we commemorate 50 years of distinction and look ahead to another 50 years of Excellence in Advocacy. Hear from World Renowned Speakers as we look towards the Future of Advocacy. Symposium Topics Include: New Forums for Dispute Resolution The Evolving Art of Persuasion Class Action Settlement Implementation International Criminal Prosecutions Advocacy Against the Odds Tickets are limited. For more details, contact Rachel Stewart at rachel@advocates.ca or at (416) 597-0243 ext. 129. AdvocatesSociety_LT_Oct28_13.indd 1 www.lawtimesnews.com1:16 PM 13-10-23 sensible." He goes on to state  that he was wrong in his previously expressed view that costs should "follow the event" in class actions. "I . . . wish that the recommendations on costs as set out in the Ontario Law Reform Commission's Report on Class Actions had been accepted," wrote Belobaba. "Instead, the provincial legislature decided to adopt the views of the attorney general's advisory committee and continue the 'costs follow the event' convention for the very different world of class actions as well. I was a member of that advisory committee. I now realize that I was wrong and that the OLRC was right. I understand that the provincial law commission is undertaking a review of the Class Proceedings Act, including the costs provisions. Hopefully, our mistake will be corrected." For his part, Kim favours a nocosts rule but notes the legislative trade-off will be tougher requirements for certification through enhanced examination of the merits. An anecdotal survey of a handful of members of the defence bar, however, found that most lawyers believe costs are an appropriate incentive to make plaintiffs and their lawyers think about litigation. Even those who were willing to contemplate a nocosts regime showed only guarded enthusiasm for the prospect. "I'm not at all sure about a nocosts regime because costs do serve some purpose as a deterrent in some cases," says Caroline Zayid of McCarthys' Toronto office. As Belobaba saw it, the guidance in the Rules of Civil Procedure and from the Court of Appeal "can only take you so far." After closely analyzing the Court of Appeal's directions on costs in Pearson v. Inco Ltd. and taking considerable pains to point out the practical difficulties in implementing them fully, Belobaba goes on to outline the procedure he'll follow in costs awards in certification motions apart from those  falling within the categories of test cases, novel points of law, and matters of public interest: 1. Costs outlines certified by counsel will be adequate with actual dockets not required. 2. Hourly rates must fall within the range set out by the Law Society of Upper Canada's rules committee in its information to the profession. 3. Apart from "obvious excesses in fees or disbursements, I will accept the costs outline as is" and "will not drill down into any of the detail." 4. A party who wishes to argue that a submission is unreasonable should submit its own costs outline showing what it spent on the motion. "If a parallel costs outline is not submitted by the unsuccessful party (and none is required) I will probably conclude that the amount being requested by the successful party is not unreasonable." 5. Historical costs awards in similar cases will be considered. The judgment contains a useful table of historical costs Belobaba has compiled. 6. The objective of the final award is to make one that is "fair and reasonable to both sides, always remembering that the fundamental objective of the Class Proceedings Act is access to justice." 7. "In cases where the final fees or disbursement amount is dramatically above the norm, I will consider making a costs award in two parts: a portion that is payable immediately and a further portion that is payable in the cause." LT

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