Law Times

Page 6 December 9, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Province fails on court technology I t's now clear that the dream of a comprehensive court technology system won't become reality any time soon. As the Ministry of the Attorney General told Law Times last week, the government won't be going ahead with the Court Information Management System — an effort touted as a bid to "fundamentally alter internal and public access to the courts" that would include enhancements such as electronic document filing — after years of trying to get it and other similar programs off the ground. It has also given up on a full rollout of the Crown Management Information System, an effort to digitize Ontario's largely paper-based prosecution service, within the criminal law division. As of last year, the province had spent almost $10 million on the Court Information Management System with the budget for the criminal law division program projected to hit $11.5 million. The plan now is to take an incremental approach to court technology by introducing more automated paperless processes and electronic services for the public. As for prosecutors, the government will continue with limited use of the Crown Management Information System in some offices while it works on developing a new program that will also allow it to better track workload information. One of the priorities is technology that would allow the ministry to get disclosure materials from police electronically. On one level, it's outrageous that the government has repeatedly failed on this issue. After so many false starts dating back to the late 1990s, it's amazing that the government can't get a functioning system up and running. In addition, while the government notes it's prioritizing technology to allow people to appear in court remotely, that's hardly anywhere close to the comprehensive electronic options, particularly when it comes to filing documents, people expect. The failure isn't on the level of the eHealth Ontario scandal or the massive costs of developing the Presto card for the province's transit systems. But it's clear the government has dropped the ball on something the court system needs to be more efficient and accessible for lawyers, judges, staff, and the public. Did it waste time developing its own system when it could have borrowed from other jurisdictions? Should it have budgeted more for the projects in order to have a more realistic chance of developing something useful given the scale of Ontario's justice system? Is the failure largely due to mismanagement? It's hard to say, although reports over the years have noted mismanagement was a factor. At this point, an incremental approach isn't unreasonable given the amount of money spent so far and the need to start delivering results. But it's a shame those results won't be anything close to what people need and expect. — Glenn Kauth Defence counsel warned to pay attention to victim fine surcharges W hen the victim fine surcharges became mandatory on Oct. 24, 2013, there was an almost instantaneous judicial backlash. Parliament had clearly intended to remove judicial discretion by making their imposition mandatory in all cases, but judges quickly became creative. The victim surcharges had previously been $50 for summary conviction charges, $100 for indictable matters or 15 per cent of any fine imposed by the court. Under s. 737, the judge could waive the surcharge if the offender established undue hardship. The courts, however, were waiving it frequently. Bill C-37,  the Increasing Offenders' Accountability for Victims Act,  doubled  the victim fine surcharges to $100 for summary offences, $200 for indictable ones or 30 per cent of any fine imposed. It also made them mandatory. In response to the new regime, some Ottawa judges began granting so much time to pay — up to 60 years — that the accused realistically would never have had to pay the victim fine surcharge. Other judges imposed nominal fines of $1 Law Times add up. A client who's getting so that the surcharge would only be 30 cents. Some judges A Criminal a jail sentence may have significant surcharges to pay.  even continued to waive the Mind For clients who aren't looksurcharges based on an uning at jail but are pleading to reported decision by Ontario multiple counts, there will be Court Justice Stephen Hunter considerable interest in havon Oct. 29, 2013, in which, acing counsel recommend small cording to the Ottawa Citizen, fines in order to avoid an ache had found that the mandacumulation of $100 or $200 tory surcharge was a tax and, surcharges. And as I wrote in therefore, unconstitutional.  The Ontario government Rosalind Conway an earlier column, surcharges may now figure more promiresponded swiftly. The Ottawa Citizen reported on Nov. 26 that an nently in negotiations with the Crown. e-mail had circulated to the judges re- However, it's important to remember that minding them of a 1999 order in council the court has the ability to grant time to that stated offenders must pay the victim pay if it imposes a fine rather than jail, a surcharges within 30 days for a summary suspended sentence or a discharge. Clients who haven't paid their surconviction offence and 60 days for an indictable matter. They could grant addi- charges may find that they can't renew their driver's licences or other permits. tional time to pay if they imposed a fine. It's likely there will soon be a consti- They can also go to jail for non-payment tutional challenge to the new surcharges. of surcharges. The new regime for surcharges is a The order in council, of course, predates the amendments that significantly in- prospective rather than a retrospective one, according to Judge Wayne Gorman crease the penalties for the client. It's not uncommon for the police to in R. v. Williams and Judge Harold Porlay a long list of charges and the con- ter in R. v. John Joseph Francis. Gorman sequences for hapless clients can really ruled the surcharge is a punishment and Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com that the accused has a right to receive the lesser sanction. So is it a tax or a punishment?  The Nova Scotia Court of Appeal's decision in R. v. Crowell had found the old surcharge to be neither a true tax nor a true fine because it wasn't mandatory and it was a "unique penalty in nature of a general kind of restitution." Don't assume that the maximum surcharges are $100, $200 or 30 per cent of a fine because the judge does have the power to impose a larger amount if the court finds it's appropriate in the circumstances and the offender has the ability to pay. This applies to charges laid both prior to and subsequent to the amendments. Caveat barrister. Don't gloss over the surcharges with clients because they won't be happy when they have to pay, they can't renew their driver's licences or they go back to jail. It's now a more onerous obligation than ever, when obtaining instructions, to give thorough advice to clients on surcharges. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com

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