The Victim Fine Surcharge is Unfairly Punitive for Marginalized Offenders

Unless you’ve experienced the criminal justice system firsthand, “victim fine surcharge” probably doesn’t mean very much to you.

But it has been at the centre of an ongoing legal controversy for a number of years now.

The mandatory victim fine surcharge was first brought into effect by the Harper government on October 24, 2013. 

It amounts to 30 percent of any monetary fine that is ordered to be paid by the court. If no fine is ordered, a fine of $100 is payable for a summary-offence conviction and $200 for being convicted of an indictable crime. 

This means that where an offence carries a mandatory $1,000 fine, an extra $300 will be automatically tacked on. As fines increase, so do surcharges…and if a judge decides not to impose a fine at all, one will be automatically generated in any event.

The money collected from victim fine surcharges is used by the government to fund victim-services programs. And while this seems like a good idea in theory, making it mandatory ultimately does more harm than good in practice.

This is because judges have absolutely no discretion when it comes to the victim fine surcharge. 

They cannot do anything to avoid imposing it. So even in circumstances where an offender is financially destitute and unable to pay, a judge will still be required to order hefty fines against them. 

This means that marginalized offenders end up being bogged down by insurmountable debt…and they could face further jail time for nonpayment. 

This fact creates significant, additional barriers for such offenders well into the future and only serves to deepen existing social inequality. 

Moreover, ordering such fines against impoverished offenders does nothing to aid in their rehabilitation. It ironically achieves exactly the opposite as offenders are faced with more obstacles in their path to recovery.

They experience further difficulty when securing things like adequate housing, for example, as a result of such outstanding debts, and are caught in a criminal justice system that treats them unfairly and arbitrarily based on their financial status. 

In this way, the victim fine surcharge finds itself at odds with some of the most basic and fundamental principles of our criminal justice system.  

In 2014, Ontario Court Justice David Paciocco recognized this. He ruled that the victim fine surcharge was unconstitutional.

In his landmark decision, he said that it amounts to cruel and unusual punishment and was of the opinion that it should no longer be applied. 

Unfortunately, the decision was not binding on future cases. So, although it may help set a useful precedent, judges are still—by and large—being forced to apply the law as it currently stands.

But the good news is that this issue is currently before the Supreme Court of Canada.

Only a few weeks ago, lawyers from British Columbia travelled to Ottawa to argue that the victim fine surcharge is unconstitutional and must be struck down. The verdict is still out. 

I, for one, am hopeful that our court will decide to quash the mandatory victim fine surcharge provisions, once and for all. But while we wait, marginalized people across this country will continue to suffer under an unjust and discriminatory law.

And while prolonged waiting is an undesirable reality of our judicial system, the difficult aspect of this issue is that it didn’t need to be this way.

Our federal government has had ample evidence about the unconstitutional nature of the victim fine surcharge for a number of years now. It knows that it does more harm than good, and does nothing to further our former government’s “tough on crime” mandate. 

In fact, in 2016, our government introduced a bill to strike down mandatory victim fine surcharges, and create a discretionary scheme in its stead.

Unfortunately, however, this bill never made it off the ground. While the exact reasons for that remain unclear, it seems that it was ultimately sidelined in favour of more pressing government business.

At the end of the day, it is disappointing and frustrating to know that the Trudeau government, which campaigned on a platform of evening out social inequalities and fixing a broken justice system, did so little to advance this issue in spite of pressing evidence that it is harmful for marginalized people across the country. 

With any luck, though, our courts will right this wrong…sooner rather than later.

Read the full article in The Georgia Straight here

Sarah Leamon