On October 21, Canada’s Minister of Justice, Jody Wilson-Raybould, announced that the federal government would be changing the victim-fine surcharge regime. This is long overdue and will have a significant impact on the criminal justice system.
The victim-fine surcharge was first introduced by the federal government in 1989, with the intention being that offenders should have to fund programs that are in place to help and support victims.
Until 2013, sentencing judges could use their discretion to waive the surcharge where offenders were too poor to pay the amount.
However, as one of Prime Minister Stephen Harper’s “tough-on-crime” initiatives, changes were made to the Criminal Code removing all judicial discretion with regard to the imposition of the victim-fine surcharge.
As it stands at present, where a penalty other than a fine is imposed as part of the sentence, each count where there is a finding or plea of guilt requires the offender to pay a significant surcharge ($100 per count proceeded with by summary conviction or $200 per count proceeded with by indictment). If a fine is imposed in sentencing, the victim-fine surcharge constitutes 30 percent of the fine amount, so the offender ends up having to pay a total of 130 percent of the monetary penalty—in the form of a fine—actually imposed by the judge. (For instance, if an individual pleads guilty to impaired driving and receives the statutory minimum penalty of a $1,000 fine and a one-year driving prohibition, the surcharge would be an additional $300, resulting in a total amount owing of $1,300.)
There were some significant issues with the mandatory imposition of the victim-fine surcharge.
Firstly, most individuals convicted of criminal offences are not in strong financial positions. Many would quite accurately be viewed as being indigent. The surcharge requirement ensured that they were saddled with debt for years to come, acting as a significant obstacle and a deterrent to people trying to rebuild their lives and improve their standing.
For many jobs, employers are reluctant to hire individuals with criminal records. This means that offenders would have to wait the required time after being convicted and then apply, and pay for, a pardon (now called a “record suspension”). Unfortunately, these very expensive pardons could not be obtained while an individual had outstanding debts owed, such as from the victim-fine surcharge. This made attaining higher-paying jobs impossible for many people, and actually hurt taxpayers, as these individuals were then more likely to be dependent on income assistance programs. (The irony of this seemed to be lost on the previous Conservative government and many of its supporters, who paradoxically liked “tough-on-crime” policies while purportedly embracing fiscal conservatism.)
Secondly, the costs of the surcharge were borne by some of the most vulnerable and downtrodden people in society. Many of the poorest offenders often find themselves on numerous sets of conditions, including release conditions and probation orders. Committing one criminal act while on multiple sets of conditions will almost always result in multiple charges (the substantive charge plus at least one breach charge per set of conditions), and the Crown will often seek convictions with respect to a breach of each order, in addition to the substantive charge. If, for instance, an individual commits a theft while also subject to release conditions and a probation order, this person will likely have to pay three separate victim-fine surcharges. Moreover, individuals with substance abuse issues (which are ultimately mental health issues) placed on conditions not to consume or possess alcohol, for instance, would end up being ordered to pay the surcharge, despite the fact that this is a victim-less crime, and in fact would not be criminal behaviour for anyone else in society not subject to these restrictive conditions. Essentially, people were being punished for having mental health issues.
Since 2013, some judges have developed creative methods of sidestepping the imposition of harsh surcharges on offenders. In some cases, judges will impose miniscule fines on top of the “actual” sentence (such as a probation order), meaning that the surcharge would only be 30 percent of the fine (for instance, $3 on top of a $10 fine). In some other cases, offenders were given an extremely long period of time in which to pay off the surcharge.
Certainly, many members of the judiciary resented the removal of their discretion in these matters and crafted unique solutions to ensure that the most destitute offenders were not punished in an unduly harsh manner.
This issue should serve as a reminder that the criminal justice system should not be meddled with for strictly ideological and political purposes. Actors in the criminal justice system generally do an excellent job of ensuring proper and fair outcomes, despite the existence of absurd and arbitrary provisions.
To quote Martin Luther King, Jr., “The arc of the moral universe is long, but it bends towards justice.”
By Katrina Trask