On October 24, 2013, as part of the former Conservative government’s “tough on crime” initiative, a number of amendments were made to a relatively unheralded section of the Criminal Code. As a result of the changes that were made to section 737 of the Code, sentencing judges would now be mandated, in all cases, to impose upon offenders a sanction referred to as a “victim surcharge”. Section 737(1) states that upon conviction or discharge, an offender shall pay a victim surcharge, in addition to any other punishment imposed on the offender. Pursuant to section 737(2), the victim surcharge is 30% of any fine that is imposed upon an offender, or, if no fine is imposed, $100 in the case of an offence punishable by summary conviction, and $200 in the case of an offence punishable by indictment.

Prior to these amendments, judges had broad discretion to waive the imposition of the victim surcharge if paying it would cause “undue hardship” to the offender, or to the offender’s immediate family. In courtrooms across Canada, judges would exercise this discretion regularly, and with good cause. It is a frank and unfortunate fact that a great number of individuals who become entangled in the criminal justice system come from situations of significant social and economic deprivation. For many offenders, $100 is a considerable sum of money, and forcing them to pay this surcharge can have a range of extremely detrimental effects. In addition to the obvious financial burden, the failure to pay the surcharge can lead to provincial and federal government agencies refusing to issue or renew any “license, permit or other instrument” (e.g. a driver’s license), and an outstanding victim surcharge prevents an offender from applying for a criminal record suspension.

Perhaps unsurprisingly, the amended s. 737 was held to be unconstitutional by a number of judges of the Ontario Court of Justice. One of the most well-known decisions is R. v. Michael, in which His Honour Justice Paciocco determined that the amended section contravened section 12 of the Canadian Charter of Rights and Freedoms. His Honour found that mandating that an individual like Mr. Michael – who was described as an “addicted, virtually homeless individual living on a social assistance street allowance that puts him deep below the poverty line” – pay the victim surcharge was a grossly disproportionate penalty that constituted cruel and unusual punishment. However, not all jurists agreed with Justice Paciocco. In the summary conviction appeal court decision in R. v. Tinker, His Honour Justice Glass determined that the surcharge section amendments did not in fact offend the Charter. Justice Glass found that the victim surcharge could not be a cruel and unusual punishment as it was not in fact a punishment at all. It was simply a sum of money established to be a “consequence of breaking the law”. Although the Tinker decision failed to engage with a number of critical textual and contextual issues raised by Justice Paciocco in Michael, as Tinker was a decision of a summary conviction appeal court, it “effectively decided in Ontario an issue on which there had been multiple decisions both in favour and against the constitutionality of the new sections”: R. v. Fedele.

Regardless of one’s position on the holding in Tinker, what is abundantly clear is that the mandatory victim surcharge can and does have a very real impact on those poor, mentally ill, and addicted offenders who so frequently appear before the courts of our provinces. Thankfully, it appears that there is some measure of light on the horizon. The Liberal government has recently introduced Bill C-28, a piece of legislation that would once again amend section 737. If and when Bill C-28 is enacted, it would return some measure of discretion to sentencing judges as it would allow them to waive the victim surcharge if an offender “establishes to the satisfaction of the court” that payment of the surcharge would cause undue hardship to the offender. Although certainly a welcome amendment, there is some cause for apprehension given the rather vague language of establishing undue hardship to the “satisfaction of the court”, and given that section 737(6.1) of the new bill specifies that “the imprisonment of the offender alone does not constitute undue hardship”. Many poor, mentally ill, and addicted offenders are repeat offenders who are often not granted bail prior to being sentenced. Hence, it may be extremely difficult for these offenders to obtain “proof” of undue hardship to the “satisfaction of the court”.

Moving forward, it will be the job of defence counsel to advocate on behalf of our clients to ensure that the standard of “satisfaction” is reasonable and contextual. To offenders with means, the victim surcharge may well be a simple “consequence of breaking the law”. But it is not hard to see that for offenders like Mr. Michael, the imposition of a surcharge they cannot pay will continue to feel like cruel and unusual punishment.

If you, or some one you know, have questions about the victim surcharge, or potential pending changes to s. 737 of the Criminal Code, call Hicks Adams at 416-975-1700.

Adam Forbes, Associate, Hicks Adams