Victim Fine Surcharge
The Increasing Offenders’ Accountability for Victims Act brought significant amendments to the “victim surcharge” under s. 737 of the Criminal Code. Judges are now required to impose a flat surcharge for each count. No longer do judges have the discretion to refrain from imposing surcharges on the grounds that it would constitute an “undue hardship” to the offender – the provision that previously allowed judges to tailor a sentence to the financial means of the offender. The surcharge is a mandatory order that must be imposed with every sentence, without consideration of the circumstances of the offence or the offender, and without regard for the offender’s ability to pay.
C-DAS is concerned that the changes to the Victim Fine Surcharge significantly impact the most marginalized and disadvantaged people in our communities, such as those who are impoverished, or who suffer from mental-health issues or substance abuse problems. The legislation interferes with the ability of judges to impose a sentence that is proportionate and consistent with the principles of sentencing.
There have been constitutional challenges to the legislation in some provinces, including British Columbia. Most recently, in R. v. Barinecutt, 2015 BCPC 189, this regime was found to be unconstitutional, a decision that will undoubtedly reach the Court of Appeal. This is an example of a potential opportunity for C-DAS to apply to intervene in a case involving legislation that has a grossly disproportionate effect on disadvantaged persons within the criminal justice system.