Will van Engen (2L)
The spectre of judicial discretion has yet again prompted the Federal Conservative government to enact mandatory minimum penalties to correct what it apparently feels are “soft” judges. In October of last year, the Increasing Offenders’ Accountability for Victims Act came into force and effect, removing the discretion of judges to waive the Victim Surcharge (VS).
Students who work with Student Legal Services will likely have heard of the Victim Surcharge (often referred to by its old name, the Victim Fine Surcharge). The VS acts as a levy on sentences passed by the court. Before the recent amendments, fines were subject to a 15% surcharge, and non-fine penalties (discharges, suspended sentences, incarceration, etc) were subject to $50 fines for offences punishable by summary conviction (read: less serious offences) and $100 for indictable offences (read: more serious offences).
For example, an offender who was given a $1000 fine would be forced to pay a $150 VS. An offender who was given an absolute discharge for an offence punishable on summary conviction would be given a fine of $50. The proceeds of the VS are used by the provincial and territorial governments to fund programs and services for victims of crime.
While the VS has an admirable purpose, it is often unconscionable in its application to indigent offenders. Parliament addressed this in the old provisions, providing judges with discretion to waive the VS where an offender established to the satisfaction of the court that applying it would cause undue hardship to the offender or the offenders’ dependents.
Since October, however, the VS provisions no longer include this discretion. Offenders are forced to pay the attendant surcharge regardless of their income. In addition, the surcharge has been increased to 30% on fines and $100 and $200 for non-fine penalties for summary and indictable offences respectively. Notably, those who cannot pay within the time allotted by the court will be incarcerated to pay off the fine. In effect, this means that the law imposes mandatory imprisonment for certain offenders with severe mental health or addiction issues, and those who are otherwise unable to make ends meet.
Minister of Justice Peter McKay has shrugged off the suggestion that the waiver of the VS is disproportionate and has suggested that indigent offenders can sell off their property to pay the fine (notably, Mr. McKay earns $236,900 per annum). He failed to suggest what property, for instance, a homeless drug addict could sell to pay off a $200 fine.
In a number of jurisdictions, however, judges have found ways of following the law while avoiding its unconscionable results:
- Judges have applied s. 11(i) of the Charter, which allows for an offender to take advantage of the better punishment if it changes between the offence date and date of sentencing. In other words, if the offence occurred before October 24th, the date the law came into force and effect, the offender can take advantage of the old provisions of the Code which involve lower fines and judicial discretion to waive. In this author’s experience, two Provincial Court judges have waived the VS after I made submissions regarding the application of s. 11(i).
- Judges have extended the payment period to address the indigent offender’s particular circumstances. In some cases, judges have imposed 50-60 year payment periods.
- Judges have reduced fines to keep the VS in a manageable range. In one instance, a fine was reduced to $1, making the VS a mere 30 cents.
Some have argued that judges are subverting the VS and flouting the law. These critics should keep in mind the fundamental principle of sentencing, a provision of the Code enacted by Parliament, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Allowing the full brunt of the VS to fall on an indigent defendant would not be a proportionate measure in some cases, and in my opinion judges are correct to find ways of imposing the fine while addressing the offender’s particular circumstances.
If you are self-representing or defending an offender facing an oppressive VS, you may want to consider the options mentioned above. In the case of a fine, you may want to suggest a lower fine to take into consideration the victim fine surcharge. It is essential that the VS be considered in sentencing submissions when discussing the proportionality of the sentence. When dealing with a discharge or suspended sentence, you will want to be very cautious about how much time you suggest for payment and you will want to look into programs that allow individuals to work off fines (in Alberta, this is referred to as the Fine Options Program). You will want to consider whether the offender is in treatment and when they might foreseeably be able to work again.
With these options in mind, the effects of the new VS can be mitigated and hopefully eliminated. As always: this is solely information, only a fool would treat this as advice. Do your own research! Particular attention ought to be paid to precedents set for the examples given above.