The Supreme Court’s decision was a welcome development for criminal defence lawyers who for years have had no recourse or a way to protect their clients from being forced to pay victim surcharges they can’t afford, putting the clients at a serious disadvantage when it comes to paying their debt to society and moving forward with their lives.
With this decision, the SCC has taken a new and positive step toward fairness in our criminal justice system and I applaud them for it. I am hopeful that moving forward our government will take into account the lived reality of accused and craft policies accordingly.
Section 737 of the Criminal Code mandated that anyone convicted of a criminal offence or even discharged of an offence had to pay a victim surcharge regardless of their financial ability to pay. The surcharge amount was either 30 per cent of any fine imposed or, in the absence of a fine, $100 for each summary conviction offence and $200 for each indictable offence. The surcharge payment was mandatory and left no discretion for judges, even in cases where the accused was clearly not in a position to pay the victim surcharge.
For years, s. 737 of the Criminal Code had disproportionately and negatively impacted the most vulnerable accused people within our criminal justice system. It affected people who were homeless with no fixed address and no income or those suffering from addiction or mental health problems, as well as people living below the poverty line.
Many judges in Ontario and other provinces had rebelled against the mandatory victim surcharge before it was struck down, finding creative ways to get around ordering it for accused who clearly were not able to pay.
One clever way I had observed judges circumvent the victim surcharge was by ordering a nominal $1 fine even when a fine is not required, in order to reduce the victim surcharge to 30 cents. Another tactic judges used to get around the surcharge for accused people already in custody was to refuse to give the accused person time to pay the surcharge, and then deeming the accused person to be in breach and sentencing them to one day in jail. The one day in jail sentence was usually satisfied with the court appearance, for the sentencing hearing, if the accused was already in custody. That meant the accused essentially received time served for non-payment of the surcharge and was able to move forward with their life.
In concluding that the victim surcharge amounts to “cruel and unusual punishment,” the SCC took into consideration a number of different factors that included having to live with the constant threat of going to jail for non-payment and being punished indefinitely in cases where there was no realistic prospect of ever making the payments.
Proponents of victim surcharges argue that those who couldn’t pay the victim surcharge had the option to ask for an extension of time and the opportunity to appear before a Committal Committee and explain their personal circumstances before being sentenced to a prison term for non-payment.
While these options may be viable for accused who are literate, have a fixed address, access to a computer to type the required application for extension and those who can afford representation, bringing an extension application is not a realistic option for accused who are homeless, often illiterate or suffering from addiction or mental health issues. These individuals were not in a position to prepare an application let alone serve and file it in court, in order to ask for an extension. This inevitably meant they missed their deadline to pay, putting them in violation of the order and requiring them to attend committal committees to prove they were not in a position to pay.
A serious problem with having to appear before the committal committee was the fact that for those who are homeless or have no fixed address, they wouldn’t receive an appearance notice and often wouldn’t know they were required to appear until they were picked up by the police for an unrelated reason. In these cases, there was a high likelihood that the accused person would be kept in custody until their hearing date before the committal committee, taking us back to the 18th century when people were kept in debtors’ prison.
Victim groups had raised concerns about losing a guaranteed stream of provincial income that assists with various victim assistance and support programs, as well as the possible lack of accountability by the accused toward victims.
In terms of available stream of income, while the provincial victim surcharge may no longer be available, the federal government does provide victim funds for various types of victim services including child advocacy, funding and grants for numerous victim-related projects that assist victims in participating in the criminal justice system, as well as funds for survivors of crimes who as a result have suffered from disabilities, just to name a few.
With respect to accountability of the accused to the victims, this is already a factor that is taken into account by judges during sentencing hearings, irrespective of the victim surcharge. Any sentence that may include a prison term, fine, restitution, community service, anger management and/or probation will take into account the personal circumstances of the accused as well as accountability toward both the victim and society. Scrapping the victim surcharge does not mean doing away with accused accountability. I am hopeful that moving forward our government will take into account the lived reality of accused and craft policies accordingly.
Sayeh Hassan is a criminal defence lawyer with Walter Fox & Associates in Toronto.