The Supreme Court of Canada recently issued its decision in the case of R v Boudreault, which brought together seven challenges to Canada’s mandatory victim surcharge system.
These are payments imposed on anyone found guilty of a criminal offence, and last week the Supreme Court ruled that they are unconstitutional. Writing for the 7 – 2 majority, Justice Sheila Martin said:
“The impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable.”
This decision is an important one that merits celebration. It also carries with it some potentially negative consequences.
A bit of history
In 1989, the federal victim surcharge was introduced, with the goal of making offenders more accountable. The money generated was used by federal, provincial and territorial governments to pay for victims’ programs and services.
The details of the surcharge can be found in section 737 of the Criminal Code. The amount to be paid is 30 percent of the fine imposed by the court or, if no fine is imposed, $100 for summary conviction offences and $200 for indictable offences. The court can also impose a higher amount if that is appropriate, considering the circumstances of the offender.
Until 2013, judges had considerable discretion to waive, set the amount and/or determine how long the person had to pay the surcharge. Under Stephen Harper’s government, however, these victim surcharges became mandatory.
The current government’s Bill C-75, presently before the Senate, would remove the mandatory element of the surcharge if passed, but that may be moot given this recentSupreme Court decision.
The most marginalized
As the Supreme Court noted in its decision, the majority of those who become involved with the criminal system are “poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized.” These people are often not in a position to pay the surcharge, which means they can be taken into police custody and imprisoned for nonpayment. Collection agencies can and do pursue those who are unable to pay the surcharge. This forces already very vulnerable people into a never-ending cycle of increased poverty, marginalization and stigmatization; not uncommonly for minimally serious crimes.
“The Supreme Court’s decision makes the essential point that mandatory fines impose a different system of justice for the rich and the poor.”
Speaking for the South Asian Legal Clinic of Ontario, one of the other members of the coalition, Executive Director Shalini Konanur, said:
“The mandatory victim surcharge has its harshest impacts on racialized groups that are over-represented in the criminal justice system and have higher rates of poverty.”
Judicial activism
Since 2013, many judges across the country have found creative ways to get around the law that made the surcharge mandatory. Some have set minimal fines, meaning the attached surcharge would also be very low (a $1 fine would result in a 30 cent surcharge, for example). Others gave people extremely long periods of time — in at least one case, 99 years — to pay the surcharge. Others used the power of their voices to write strongly worded decisions about the surcharge.
What’s the downside?
There is absolutely no doubt that this is a good and just decision, long overdue. Even so, it will have some negative consequences; most notably with respect to replacing the funds that the surcharge has generated to support important programs for victims of crime.
For instance, in Ontario, the Victims’ Justice Fund (VJF), part of the Ministry of the Attorney General, receives its money through both the provincial and federal victim surcharge and uses it to fund programs serving victims as well as to provide grants to community agencies that serve victims. Sexual assault and domestic violence are two of the program areas that receive financial support from the VJF.
The challenge in moving ahead from this very positive Supreme Court decision will be to ensure that governments find alternative ways to continue to fund the important work of supporting victims/survivors.
I think funding the VJF from the get-go via fine surcharges was misguided insofar as it made justice for victims the responsibility of perpetrators rather than a collective responsibility. A decent society would both support victims of crime and prevent the immiseration of victims and perpetrators along with everyone else. Finding a collective way to fund the VJF currently is essential and oughtn’t to be difficult for reasonable governments to effectuate. Finding a way to to prevent immiseration is more complex no doubt, but designing and implementing an adequately funded national basic income program would be a mighty good start.