The Supreme Court of Canada’s decision to look at whether mandatory victim surcharges are constitutional is much needed, and will hopefully provide a clear direction for judges' discretion to impose the fines, says Toronto criminal lawyer Matthew Friedberg.
“I think it’s long overdue that the high court will review the constitutionality of victim fine surcharges,” he tells AdvocateDaily.com.
Without any discretion for how it's imposed, the victim surcharge is “like a tax grab” against offenders, some of whom are the most indigent in society, says Friedberg, a partner with Caramanna Friedberg LLP.
“Punishment doesn’t necessarily dictate a fine. Like any other aspect of sentencing, a surcharge has to be tailored to the individual person. But like some mandatory minimum sentences that don’t always fit the offence or the offender, victim fine surcharges often don’t fit the offence or the offender."
Friedberg comments on the issue after the SCC agreed to review a case that involves a Quebec man who was sentenced to 36 months in prison and ordered to pay a victim surcharge of $1,400. He pleaded guilty to several charges, including break and enter, possession of stolen property, assault with a weapon and probation order breaches, reports the Canadian Press.
The man, a high school dropout who has never held a steady job, argued at the lower court level that the fee infringed the Charter guarantee against cruel and unusual punishment. The Quebec Court of Appeal rejected the man’s challenge of the lower court’s ruling that he pay the fine, the article says.
The surcharge, which is imposed on offenders at the time of sentencing, has existed for decades, but changes brought in under the previous Conservative government took away the discretion judges had to waive the fee if the offender genuinely has no means to pay, says the wire service.
When the fee became mandatory four years ago, judges in several provinces declined to impose it on impoverished offenders or found creative ways of ordering it, such as making a payment deadline decades into the future, says the Canadian Press.
The victim surcharge is 30 per cent of any fine that is imposed on an offender. In cases where there is no fine, $100 is charged for a summary conviction offence or $200 for an indictable offence, it says. The fines are paid into provincial funds for victims programs.
Friedberg says judicial discretion and the previous Conservative government’s attempts to curtail it is at the heart of the issue when it comes to victim fine surcharges.
“Without judicial discretion, some people are getting fined when they have no means of paying,” he says. “Sometimes the fines aren’t appropriate because there is no victim, but the individual is still forced to pay a victim fine surcharge.
“The fine has turned into a revenue stream for the government.”