A recent story involving our Conservative government has caught my eye in a chilling way. Minister of Justice Rob Nicholson announced the introduction of an act to amend the Criminal Code with respect to the victim fine surcharge. The victim fine surcharge is imposed in addition to any other punishment for an offender convicted of an offence under the Criminal Code of Canada or the Controlled Drugs and Substances Act. Currently, the victim fine surcharge is 15 percent of any fine imposed (i.e. if an offender is ordered to pay a $1,000 fine, the victim fine surcharge is an additional $150 the offender is required to pay). If no fine is imposed, the victim fine surcharge is $50 for summary offences and $100 for indictable offences. A judge can waive the imposition of the surcharge if it will cause undue hardship for the offender. Reasons must be given when the surcharge is waived.
The victim fine surcharge is supposed to go toward financing provincial/territorial victim services and programs. The surcharge is different from restitution, which is an amount that the offender must pay to compensate the victim.
Minister Nicholson has the following to say about the proposed amendments: “Our government is delivering on our promise to double the victim surcharge and make it mandatory in every case, without exception. This legislation will ensure that victim support services receive the funding that they require and deserve.” If the proposal goes through, the victim fine surcharge will be 30 percent of any fine imposed and if no fine is imposed, it will be $100 for summary offences and $200 for indictable offences. For offenders who cannot pay, they may be able to participate in a provincial fine option program, where such programs exist. The programs would allow offenders to satisfy the financial penalty ordered as part of a sentence by earning credits for work performed in the province or territory where the crime was committed.
With the introduction to this proposal, Senator Pierre-Hugues Boisvenu said: “Canadians deserve a justice system that sentences offenders in a way that reflects the severity of their crime and respects victims of crime. By doubling the victim surcharge and ensuring that it cannot be waived, our Government is sending a signal that offenders must pay for the harm they cause to victims.”
Putting more money into victim services is a worthy and admirable goal. My beef with the proposed legislation is the fact that it takes discretion away from judges and makes the surcharge mandatory. “What’s wrong with that?” many of you may be asking. “Of course we should penalize criminals and make them pay for victim services!”
The problem is that many offenders simply cannot afford to pay this surcharge, especially those in the Downtown Eastside appearing at the Vancouver provincial court, which is one of the busiest courthouses in the province. As it stands, the surcharge is ordered when an offender has the means to pay. When a judge sees the obvious, which is that a person who suffers from a combination of drug addiction, mental illness, and extreme poverty has been convicted of their umpteenth shoplifting charge, the judge will exercise their discretion in waiving the surcharge. That offender may also have been in custody for days, weeks, or months awaiting their trial or sentencing hearing, during which time they would not have been working or collecting social assistance.
Judges are the ones who listen to the submissions of counsel, hear all the evidence, and make the ultimate decision on what the appropriate sentence should be. In my opinion, it’s wrong to take the discretion away from them. And the idea that people who can’t pay the fine will go to programs (only if they’re even available) is ridiculous when again, some are so low-functioning they won’t even make it to the program, much less complete it.
There hasn’t been word on what happens to offenders who can’t pay and can’t complete these maybe-we’ll-provide-them-maybe-we-won’t programs (don’t forget, money will have to be spent on these programs). Will they be sent to jail, costing taxpayers even more money? This is a question that needs to be answered.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at email@example.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.