Challenge to victim surcharge heads to Supreme Court

By Justin Ling April 13, 201813 April 2018

Challenge to victim surcharge heads to Supreme Court

Could this be the last act of the mandatory victim surcharge?

The Supreme Court is hearing arguments next week on whether the automatic restitution constitutes cruel and unusual punishment, under Section 12 of the Charter.

The hearing will finally bring to a head many of the problems and deficiencies that have been attributed to the mandatory surcharge.

Even though the current government has been critical of the way the mandatory victim surcharge was set up under its predecessor, its submissions to the court were short and pointed.

“The victim surcharge does not constitute an indefinite sentence,” the Crown’s submission reads. They note that the Criminal Code lays out the amount that must be paid, the deadline it must be paid by, and how it can be paid. The fact that the surcharge can be paid through work or incarceration “doesn’t alter its nature,” the factum reads.

Even so, Justice Minister Wilson-Raybould seemed to recognize that the mandatory surcharge, as written, has problems. That’s why she introduced Bill C-28, which restores judicial discretion to waive the surcharge if a court believes it could cause “undue hardship” for the convicted. A government background document notes that applying the surcharge to all offenders, “even those who genuinely lacked the ability to pay, has resulted in a number of Charter challenges.”

That legislation, like a many other justice bills, has sat on the order paper, and has not yet reached second reading in the House of Commons. The crux of that bill has been added to Bill C-75, the government’s omnibus justice legislation.

Irrespective of the government’s plans, the law as amended in 2013 is what is currently before the court.

And, as CBA National first reported in 2014, the government’s insistence that alternative payment methods can help avoid hardship on low-income individuals who are required to pay the surcharge doesn’t hold water.

Pivot Legal Society is intervening on the case to advocate on behalf of its clients, especially street involved people, drug users, and sex workers. Pivot argues that forcing those members of society who already live and work on “skeletal” incomes is simply continuing the “grinding cycle of poverty.”

But Pivot takes particular aim at the government’s contention that, for those who cannot afford the surcharge, alternative methods of payment exist.

“None of the protections are available to offenders in BC, a jurisdiction that deploys sweeping civil enforcement mechanisms while offering no alternative method to discharge the debt,” Pivot’s factum reads.

Indeed, as CBA National reported in 2014, B.C. simply has no fine repayment program. (The same goes for Ontario and Newfoundland.)

“If the argument is that a fine option program saves the constitutional validity of s. 737, it has no relevance to BC, where no such program exists,” they write. “Indigent offenders unable to pay in BC remain exposed to the deleterious effects of the surcharge for the remainder of their lives.”

The alternative option does exist, however, to pay the fine through jail time. Though it is unclear whether the courts will look fondly on a program, ostensibly designed to fund victims services, that succeeding in adding jail time for offenders who have already been sentenced.


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