Victim Surcharge Mandatory Effective Today

As of today, Judge’s will no longer have discretion to waive the victim surcharge.  This is a result of Bill C-37, or the  Increasing Offenders’  Accountability for Victims Act, coming into force.

The Act amends s. 737 of the Criminal Code.  It will repeal ss. (5) and (6), which previously stated:

(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1).

(6) When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings.

Additionally, the Act amends ss. (2) which states the amount of the surcharge.  It is now 30% (raised from 15%) of any fine imposed and, if no fine is imposed, $100 (raised from $50) for a summary conviction offence and $200 (raised from $100) for an indictable offence.

This is problematic legislation.  It doesn’t recognize that people may suffer financial hardship and simply be unable to pay these fees (such as homeless, drug-addicted, and mentally-ill accused persons).  It also further erodes judicial discretion to determine the appropriate sentence for an offence.  Another problem, and I’ve heard a Judge make a similar comment, is whether there is any proof that this money actually goes to assist victims of crime.

I expect there will be a constitutional challenge to the legislation.  I also wonder if we’ll start to see more small, nominal fines, in lieu of some other sentences, to avoid the hefty surcharges when no fine is imposed.  For example, is a Judge was going to suspend sentence and place an accused on probation, but instead issues a $1 fine and still places them on probation, the surcharge will only be $0.30.  If this turns out to be a legitimate loophole (I would think an appeal court could close it as usurping the purpose of the legislation) then it wouldn’t work for discharges, as a fine carries a conviction and a criminal record.

What is also unclear is how the government will actually collect from those who can’t afford to pay, and whether it will be imposed per count or per global sentencing.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

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