A Criminal Mind: Defence counsel warned to pay attention to victim fine surcharges

When the victim fine surcharges became mandatory on Oct. 24, 2013, there was an almost instantaneous judicial backlash. Parliament had clearly intended to remove judicial discretion by making their imposition mandatory in all cases, but judges quickly became creative.

The victim surcharges had previously been $50 for summary conviction charges, $100 for indictable matters or 15 per cent of any fine imposed by the court. Under s. 737, the judge could waive the surcharge if the offender established undue hardship. The courts, however, were waiving it frequently.

Bill C-37, the Increasing Offenders’ Accountability for Victims Act, doubled the victim fine surcharges to $100 for summary offences, $200 for indictable ones or 30 per cent of any fine imposed. It also made them mandatory.

In response to the new regime, some Ottawa judges began granting so much time to pay — up to 60 years — that the accused realistically would never have had to pay the victim fine surcharge. Other judges imposed nominal fines of $1 so that the surcharge would only be 30 cents. Some judges even continued to waive the surcharges based on an unreported decision by Ontario Court Justice Stephen Hunter on Oct. 29, 2013, in which, according to the Ottawa Citizen, he had found that the mandatory surcharge was a tax and, therefore, unconstitutional.

The Ontario government responded swiftly. The Ottawa Citizen reported on Nov. 26 that an e-mail had circulated to the judges reminding them of a 1999 order in council that stated offenders must pay the victim surcharges within 30 days for a summary conviction offence and 60 days for an indictable matter.

They could grant additional time to pay if they imposed a fine.

It’s likely there will soon be a constitutional challenge to the new surcharges. The order in council, of course, predates the amendments that significantly increase the penalties for the client.

It’s not uncommon for the police to lay a long list of charges and the consequences for hapless clients can really add up. A client who’s getting a jail sentence may have significant surcharges to pay.

For clients who aren’t looking at jail but are pleading to multiple counts, there will be considerable interest in having counsel recommend small fines in order to avoid an accumulation of $100 or $200 surcharges. And as I wrote in an earlier column, surcharges may now figure more prominently in negotiations with the Crown. However, it’s important to remember that the court has the ability to grant time to pay if it imposes a fine rather than jail, a suspended sentence or a discharge.

Clients who haven’t paid their surcharges may find that they can’t renew their driver’s licences or other permits. They can also go to jail for non-payment of surcharges.

The new regime for surcharges is a prospective rather than a retrospective one, according to Judge Wayne Gorman in R. v. Williams and Judge Harold Porter in R. v. John Joseph Francis. Gorman ruled the surcharge is a punishment and that the accused has a right to receive the lesser sanction.

So is it a tax or a punishment? The Nova Scotia Court of Appeal’s decision in R. v. Crowell had found the old surcharge to be neither a true tax nor a true fine because it wasn’t mandatory and it was a “unique penalty in nature of a general kind of restitution.”

Don’t assume that the maximum surcharges are $100, $200 or 30 per cent of a fine because the judge does have the power to impose a larger amount if the court finds it’s appropriate in the circumstances and the offender has the ability to pay. This applies to charges laid both prior to and subsequent to the amendments.

Caveat barrister. Don’t gloss over the surcharges with clients because they won’t be happy when they have to pay, they can’t renew their driver’s licences or they go back to jail. It’s now a more onerous obligation than ever, when obtaining instructions, to give thorough advice to clients on surcharges.

For more, see "Judges resisting stiff crime laws."

Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].

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