No movement on scrapping surcharge

The federal government says it has not taken further steps to give judges the discretion to waive the mandatory victim surcharge, despite announcing its intention to do so 14 months ago, because of a lack of time available in Parliament.

Amendments to Criminal Code provisions that require judges to impose a victim surcharge of $100 for every summary conviction offence, or $200 for every indictable offence conviction, were introduced in October 2016 by federal Justice Minister Jody Wilson-Raybould.

The bill is still at the first reading stage and has not progressed since it was tabled in the House of Commons last year.

The federal Department of Justice deferred questions about why the government has not moved forward to the office of the Government House Leader.

Sabrina Atwal, a spokeswoman for the office, says that the changes to the surcharge provisions are part of an “ambitious legislative agenda” by the Liberal government.

“This is a broad agenda and MPs have debated a wide variety of bills in recent months in the limited time available in the House of Commons,” says Atwal. “We look forward to our proposed legislative changes being debated and studied by Parliament in due course,” she adds.

The fact that the amendments are no closer to being enacted into law means that constitutional challenges to the mandatory surcharges, originating in Ontario and Quebec, will almost certainly go ahead as scheduled in the Supreme Court of Canada next spring.

If the legislation had been enacted the appeals might have been moot.

As well, the federal Justice Department informed the Supreme Court last month that it is withdrawing as an intervener in the appeals. That means it will be up to the attorneys general of Ontario and Quebec to defend the constitutionality of the federal legislation.

Daniel Rechtshaffen, a Toronto-based defence lawyer, says it is unfortunate that there might be more litigation and more court resources utilized to debate a measure that is widely perceived as not serving its intended purpose of assisting victims of crime.

“The entire history of the litigation on the victim surcharge issue has not considered the strong feeling of those who ultimately have to deal with it on the ground — that in the vast majority of cases it is not helpful,” says Rechtshaffen.

“Judges don’t want to impose them. I haven’t heard a Crown say the victim surcharges add to the meaningfulness of a sentence. All of the players are essentially on the same page,” he suggests.

The surcharges were made mandatory in the Increasing Offenders’ Accountability for Victims Act, enacted in 2013 by the Conservative government of Stephen Harper. Critics stated that surcharges disproportionately impacted repeat, petty offenders, many with mental health and addiction issues. A petty offender, for example, could easily face more in surcharges than an individual convicted of murder.

The Ontario Court of Appeal found earlier this year that the mandatory financial penalties do not violate the cruel and unusual punishment provisions of the Charter.

It also concluded that the surcharges must be imposed on every count where there is a guilty finding in its rulings in R. v. Tinker and R. v. Fedele.

“The mandatory imposition of the surcharge does go some way towards achieving the valid penal purpose of holding offenders accountable to victims of crime and the community,” wrote Justice Gladys Pardu in the Tinker decision.

Data provided by the Ontario Ministry of the Attorney General shows that in the 2015-16 fiscal year less than 10 per cent ($4.2 million) of total surcharge revenue was generated from criminal court offences. Over 90 per cent of the total Victim Justice Fund revenues of $47 million came from surcharges on provincial offences, such as speeding tickets.

If defendants are indigent and do not have the ability to pay the surcharges, the Court of Appeal stated that additional time to pay could be granted by judges.

Periods of 12 to 18 months or even longer to pay the charges are not uncommon, says Michael Spratt, a defence lawyer and partner at Abergel Goldstein & Partners LLP in Ottawa.

“The justice system seeks to level itself when there is an imbalance. I wish those who make up criminal justice policies would actually spend more time in courts,” Spratt says.

The mandatory surcharges can create “absurdities,” he suggests, such as in a recent Ottawa case where an individual was classified as a dangerous offender with an indeterminate prison sentence and the judge was also required to impose a $100 penalty for a breach of a court order.

Rechtshaffen notes that the Fedele case involved an offender in southwestern Ontario with abuse issues, who stole a half wheel of cheese and a package of razor blades.

He had already spent five days in jail and faced an additional $200 in surcharges.

“The law has an obligation not to be disproportionate,” he says.

Meanwhile, the Supreme Court has granted intervener status to five advocacy groups and the Attorney General of Alberta in the mandatory surcharge challenge appeal now scheduled to be heard in April. It is expected that more interveners will be approved before the hearing date.