Charter challenge from classroom to courtroom

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This article was published 17/05/2021 (1665 days ago), so information in it may no longer be current.

A group of University of Manitoba law students has taken on a unique charter challenge, arguing hefty mandatory minimum fines are “cruel and unusual” punishment for low-income tax offenders.

In May 2020, Larissa Campbell, student supervisor at the university’s Community Law Centre (known as the Legal Aid clinic), was in charge of several cases of Manitobans who had brought cigarettes into the province from a First Nations community just across the Ontario border, without having paid the required taxes.

Many of the files tacked offenders with minimum penalties ranging from $8,000 to more than $15,000 — far more than any of her clients could pay.

All of the centre’s clients fall into a lower income bracket, Campbell explained, meaning a multi-thousand-dollar fine is “significant — to the point where it raised some red flags.”

As a third-year law student, armed with fresh perspective and a passion for fairness and equality under the law, Campbell and fellow students Dan Jr Patriarca and Brayden McDonald began putting together a case arguing such crushing fines violate Section 12 of the Canadian Charter of Rights and Freedoms.

“What’s the purpose of imposing significant penalties on people who probably either can’t pay, or it would be such a burden on them to pay that it just would be cruel and unusual to do so?” Campbell said in an interview Tuesday.

“It really came down to the fact that for some of these people it would basically vitiate their ability to live for a year, if not longer. They couldn’t spend money on anything in the next couple of years if they wanted to pay this fine off.”

Campbell inherited the files in the early months of what would become an ever-shifting year for the Manitoba courts.

The hearing before Judge Timothy Killeen happened nearly a year later, in March 2021. COVID-19 restrictions changed the process for the student team, who had to apply for special applications to allow clients to appear by video conference.

Supervising lawyer Michael Walker, with the Legal Aid clinic, said the case is one of the most significant students have tackled in his more than a decade with the program.

If successful, it will be considered in other cases and can have ripple effects through the legal system, Walker said.

Clients at the Legal Aid clinic must pass both a financial means test and a risk-of-jail test. Those with low risk of jail time, such as those facing large fines, are less likely to be represented by the centre’s lawyers, Walker said.

Without the students’ initiative and volunteer hours, he added, “Who knows if this would ever had been raised?”

Similar issues with mandatory minimum sentences had come before the courts in the late 1990s, Walker said, but recent Supreme Court of Canada decisions and the elimination of the Fine Options program for certain offences opened a new opportunity for challenge.

Campbell and her team are hoping Killeen will allow some remedies for the clients.

The team asked courts to consider systems applied in Finland and other Nordic countries, that propose fines proportional to the offender’s income, or “day fines” that would take an amount from the offender’s daily income until the fine is paid.

Campbell said proportional fines for her clients would amount to approximately $1,000 each.

Walker believes the judge, who is expected to make a written decision at an undetermined time, will have a difficult task ahead balancing a desire to discourage smoking through the tax system, differential taxes on First Nations communities and the charter element of the challenge.

As students, Campbell said the team found the experience “really rewarding,” allowing them to put the skills learned in Robson Hall’s moot court into practice.

Clients, she said, have been grateful.

Campbell said the case concerns access to justice for low-income offenders navigating a legal system that often takes a “one-size-fits-all” approach.

“I think it definitely highlights the importance of responding to the needs of Manitobans, as well as being responsive to the fact that people of different income levels should be treated equally before the law and not be almost secondarily subjected to a kind of punishment that they aren’t able to pay,” she said.

“If we adjust… to ensure that there’s more of an equal approach to penalizing people, I think we could see more change, as well as a more responsive justice system.”

julia-simone.rutgers@freepress.mb.ca

Twitter: @jsrutgers