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Mandatory Victim Surcharges Unconstitutional

In December, 2018, the Supreme Court of Canada ruled in R. v. Boudreault that the mandatory surcharge under the Criminal Code is “of no force and effect immediately.”

The surcharge was provided for in section 737 of the Criminal Code. It was levied in addition to the sentence already imposed.

A non-mandatory surcharge has been around since the 1980s. It was introduced in an attempt to increase offenders’ accountability and assist in funding victims’ programs.

Until 2013, judges could waive the surcharge if the offender was unable to pay.

Mandatory Victim Surcharge

As part of its “tough on crime” agenda, the former federal Conservative government amended the Criminal Code to remove judicial discretion to waive or vary the surcharge if it resulted in undue hardship. This made the surcharge mandatory in all cases.

The surcharge was 30% of any fine imposed. If no fine was imposed, it was $100 or $200 for each offence, depending on the type of offence. For multiple offences, it could quickly add up.

Appealing the surcharge was possible only if it exceeded the minimum amount required.

Once levied, an individual remained indebted to the state until he or she fully paid the surcharge. A court could allow more time to pay.

The mandatory nature of the charge was controversial. One Ontario judge had called it a “tax on broken souls.” Some judges found creative ways of substantially reducing the fine, or would allow extended payment periods.

The offenders who challenged the constitutionality of the surcharge all lived in serious poverty and faced addiction, mental illness or disability.

They made a number of arguments, including that the surcharge was cruel and unusual punishment, contrary to section 12 of the Canadian Charter of Rights and Freedoms.

Section 12 states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

Section 12 Analysis

The jurisprudence on section 12 of the Charter is still developing. This is in part because establishing a violation involves meeting a high threshold. To be cruel and unusual, a punishment levied by the state must be so abhorrent as to shock community standards.

The Supreme Court of Canada has developed a two-part test for assessing cases under section 12. First, the court considers whether a “punishment” is involved, and not another form of sanction or policy (for example, parole, which is supervisory rather than punitive). Then, it considers what constitutes a fit punishment, and compares that to the actual punishment.

If, when compared to a fit sentence, the actual punishment is “grossly disproportionate,” then it constitutes cruel and unusual punishment and infringes section 12 of the Charter.

If an infringement of the right is found, then generally an analysis under section 1 of the Charter  is conducted. This essentially determines whether the infringement is justified in a free and democratic society. This entails an assessment of whether it has a justifiable purpose and is proportional.

If the infringement is justified under section 1, then there is effectively no breach of the Charter.

R. v. Boudreault

In a 7:2 decision, the Supreme Court of Canada agreed with the argument that the mandatory victim surcharges violated the Charter. It ruled that the mandatory victim surcharge infringes section 12, and was not saved by section 1 of the Charter.

The Court observed that many involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized.

When unable to pay the surcharge, they essentially faced an indeterminate sentence. As long as they could not pay, they could be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies.

In effect, it created a two-tiered system, which treated impoverished offenders more harshly than those with access to the necessary funds. An inability to pay this debt further stigmatized already marginalized members of society.

This potentially indeterminate punishment resulted in a public shaming of disadvantaged offenders. The surcharge was held to be grossly disproportionate to what would otherwise be a fit sentence, “outrage the standards of decency”, and to be “abhorrent and intolerable.”

“Put simply, in our free and democratic society, it is cruel and it is unusual.”

The Future

The Court left open the possibility that individuals already subject to surcharges could potentially obtain relief from the unconstitutional effects.

This decision prompts questions regarding constitutional validity of other mandatory minimum sentences.

We will see whether another non-mandatory surcharge is introduced. In any event, this much is clear. Impecuious offenders will no longer be mandatorily dogged for years by collection efforts, under an indefinite threat of imprisonment for failing to pay.

This is a modified version of an article that appeared in the Kelowna Daily Courier on January 4, 2019 and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or