The Supreme Court of Canada dealt a decisive blow to victim fine surcharges in December, ruling in R v Boudreault that the current surcharge regime is unconstitutional and amounted to “cruel and unusual punishment” of impecunious offenders.
Amendments to the Criminal Code several years ago raised victim fine surcharges to 30 per cent of any fine imposed, or $100 for every summary conviction and $200 for every indictable count. Judges could increase, but not decrease or waive the surcharge, and offenders could not appeal it when it is imposed.
The majority of the justices (with Côté and Rowe dissenting) condemned the surcharges in unusually strong language.
The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the circumstances of this case, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. Sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they are not.
The decision notes that the offenders who appealed the surcharge in this case “all live in serious poverty and face some combination of addiction, mental illness and disability.”
In a 2012 submission on increases to the victim fine surcharges in the proposed Bill C-37, the CBA’s Criminal Justice Section said while it supported the theory behind surcharges – money collected through sentencing to fund support programs for victims of crime – the increases called for in the bill “will represent a serious hardship for (offenders) and their families.”
It also noted that the bill would remove judicial discretion – prior to these amendments, judges had the ability to waive the surcharge in cases where it would cause undue hardship to offenders or their dependents.
“The proposed amendments would produce results that are contrary to fundamental principles of sentencing in terms of allowing judges to tailor penalties to individual offenders and offences,” the Section said.
The Supreme Court ruling noted that the surcharge “will disproportionately harm offenders who are impoverished, addicted and homeless,” which the Section also noted in its 2012 submission, saying “Bill C-37 would unfairly impact already poor, marginalized and vulnerable people. Many people end up in trouble with the criminal law because of poverty, mental illness or cognitive disabilities, and will be unable to pay even a modest sum.”