The federal government struck another blow to judicial discretion last week in announcing plans to double the victim surcharge.
According to the announcement on Tuesday, the government will amend the Criminal Code in order to double the surcharge to 30 per cent of any fine imposed.
In cases where there’s no fine, the surcharge would be $100 on a summary conviction offence and $200 for an indictable matter. In addition, judges will no longer be able to waive the surcharge.
The move follows studies that have shown that judges regularly waive the surcharge. A New Brunswick study, for example, showed there were waivers on two-thirds of eligible dispositions from 2000 to 2005.
More importantly, it revealed the highest rates of waivers were often for the most serious offences, particularly those against a person. That’s logical given that offences against a person are most likely to result in jail time and thus leave the offender with a limited ability to pay the surcharge.
But it’s also ironic that those who do the most harm have a greater chance of getting out of paying a surcharge meant to, in an indirect way, provide for some type of restitution by funding programs for victims.
Clearly, then, there’s a problem with the program as it currently exists. As a result, it’s not unreasonable for the government to change the law to ensure greater alignment between the severity of crimes and the surcharges levied.
While there are clear revenue implications of increasing the surcharges and eliminating waivers, the program as it stands isn’t very fair given its stated goal of making offenders more accountable to victims.
The question, of course, is how realistic is it to eliminate discretion when there are good reasons for waiving the surcharge when people go to jail. Just exactly how does the government plan to get blood from a stone?
One option would be to allow judges latitude to reduce the sentence so the offender would have some opportunity to earn the money necessary to pay the surcharge.
That’s a reasonable approach towards holding offenders accountable to victims but one the government is sure to reject given that it’s taking sentencing regimes in the opposite direction.
An alternative would be to provide offenders who can’t pay with increased opportunities to earn money while in jail.
In the end, however, what we’ll probably end up with is lots of people convicted of more serious crimes having to pay the $200 mandatory surcharge with no fine imposed.
While that further reduces judicial discretion to acknowledge individual circumstances, the $200 surcharge is a modest amount that an offender should be able to come up with some way to pay during the course of a jail sentence.
It’s not the ideal approach to the issue but it does go some way to resolving the current incongruity between surcharges levied and the severity of the offence.
— Glenn Kauth
