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Recent Changes to the victim surcharge Law

During the sentencing hearing, an individual convicted of a criminal offence will be told that they are to pay a victim surcharge.  The victim surcharge is a monetary penalty applied upon conviction in addition to any other sentence imposed by the judge.  While it used to be the case that judges could choose not to impose a victim surcharge, recent changes to the Criminal Code have made so that the surcharge is mandatory.  This change took effect on October 24, 2013.

The Basics of the victim surcharge

After an individual is convicted of a criminal offence, the trial judge will impose a sentence.  In addition to any sentence imposed by the judge, a victim surcharge will also be imposed.  The victim surcharge is an amount of money that must be paid to the government.

Prior to the October 24, 2013 judges did not have to impose a victim surcharge if doing so would cause an “undue hardship”.  However, since October 24, 2013, judges are no longer allowed to decline to order a victim surcharge.

The Amount

The amount of the surcharge will vary.  Normally, the amount will be $100 for a summary conviction offence, and $200 for an indictable offence.  The exception to this is when a fine is imposed, in which case the victim surcharge is 30% of the amount of the fine.

It is important to note that the victim surcharge is applied to every offence for which a person is convicted.  If a person is convicted of multiple offences in a single trial, they will have to pay a victim surcharge for each offence that they were convicted of.  For example, a person convicted of two summary conviction offences at the same trial would be required to pay $200 ($100 each).

Time To Pay

If the sentence includes a fine, then the time to pay the victim surcharge will be the same as the time allowed to pay the fine.  In Ontario, if no fine is imposed, a person will have 30 days to pay a victim surcharge in the case of a summary conviction and 60 days to pay for an indictable conviction.

Individuals required to pay the surcharge may bring an application to vary the terms of the surcharge order.  Unfortunately, the amount of the victim surcharge cannot be changed.  However, it would be within the power of a court hearing such an application to change the amount of time provided to pay.

Consequences of Non-Payment

Failure to pay a victim surcharge within the time allowed can have significant negative consequences.  The rules that apply to non-payment of a victim surcharge are generally the same rules that apply to a failure to pay a fine.

Failure to pay the victim surcharge in the allotted time can result in the suspension of a licence or permit, including a driver’s licence.  It can also result in the government of Ontario refusing to issue or renew a licence or permit.

Worse, however, is the fact that not paying a victim surcharge can result in imprisonment.  The term of imprisonment is calculated based on a somewhat complicated formula.  Suffice to say that the larger the unpaid amount, the longer the sentence will be. Before a person can be imprisoned, the court must be satisfied that the licence/permit sanctions are not appropriate, and that the individual did not have a “reasonable excuse” for the failure to pay.

Reactions to the Changes

Many judges and lawyers have expressed disapproval of the changes that made the victim surcharge mandatory.

Anecdotal reports suggest that many judges who are opposed to the mandatory nature of the surcharge have simply refused to impose them. Given that the Criminal Code expressly makes clear that the victim surcharge is mandatory, this is not, strictly speaking, allowed.  It would constitute an error in law on the part of the judge.

Another judicial response of opposition has been to impose a fine of $1 in addition to any other sentence imposed by the judge as this would result in a victim surcharge of only $0.30, rather than $100 or $200.

One judge in Ontario has ruled that because of its mandatory nature, the victim surcharge is unconstitutional. In R.  v. Flaro, Justice Schnall concluded that the new victim surcharge rules violated the Charter and refused to impose the surcharge. The case dealt with several individuals convicted of criminal offences after the new rules came into effect. In each case, the accused individuals were financially destitute, either having no income or surviving on ODSP payments.  Several of the accused had mental health issues. Justice Schnall ruled that mandatory nature of the victim surcharge resulted in a penalty that cruel and unusual, thereby violating section 12 of the Charter. In addition, Justice Schnall found that the possibility of incarceration for non-payment meant that the victim surcharge violated section 7 of the Charter.

While the Flaro decision is encouraging, it is a lower court decision and is therefore not binding on other courts.  However, one hopes that other courts, in particular the Court of Appeal will reach similar conclusions in future cases.

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