On December 14, 2018, the Supreme Court of Canada nullified the victim fine surcharge provisions in section 737 of the Criminal Code (R. v. Boudreault, 2018 SCC 58). Parliament’s revised surcharge provisions came into force on July 21, 2019, pursuant to Bill C-75.
The new provisions allow a judge to waive or reduce the surcharge having regard to considerations of “undue hardship to the offender” or if the surcharge would otherwise “be disproportionate to the gravity of the offence or the degree of responsibility of the offender” (s. 737 (2.1)). This latter exemption will be of assistance to offenders facing sentencing for multiple offences.
Section 737 (3) still allows a judge to elevate the legislated surcharge that would otherwise apply “if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount”. (Practice tip: When an offender has the ability to pay and is seeking a discharge, a submission for an elevated victim fine surcharge may be of assistance in persuading the judge that the proposed punishment is not contrary to the public interest.)
The rule against retrospective application of punishment in s. 11(i) of the Charter will preclude the imposition of a victim fine surcharge for offences occurring prior to July 21, 2019. Section 11(i) states:
Any person charged with an offence has the right….if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
The final version of Bill C-75 can be found here: https://www.parl.ca/Content/Bills/421/Government/C-75/C-75_4/C-75_4.PDF
The text of the new surcharge provisions is reproduced below for ease of reference:
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge for each offence, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect of an offence is
(a) 30% of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
(2.1) Despite subsection (1), the court may, on application of the offender or on its own motion, order an offender to pay no victim surcharge, or to pay a reduced amount, if it is satisfied that the victim surcharge
(a) would cause undue hardship to the offender; or
(b) would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or the degree of responsibility of the offender.
Definition of undue hardship
(2.2) For the purposes of subsection (2.1), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.
For greater certainty
(2.3) For greater certainty, for the purposes of subsection (2.2), the imprisonment of the offender alone does not constitute undue hardship.
(2.4) When the court makes an order under subsection (2.1), the court shall state its reasons in the record of the proceedings.
Increase in surcharge
(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.
Time for payment
(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.
Amounts applied to aid victims
(5) A victim surcharge shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.
(6) The court shall cause to be given to the offender a written notice setting out
(a) the amount of the victim surcharge;
(b) the manner in which the victim surcharge is to be paid;
(c) the time by which the victim surcharge must be paid; and
(d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accord- ance with section 734.3.
(7) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim sur- charge imposed under this section and, in particular,
(a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and
(b) the notice provided under subsection (6) is deemed to be an order made under section 734.1.
Application — subsections (2.1) to (2.4)
(8) Subsections (2.1) to (2.4) apply to any offender who is sentenced for an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act that was committed after the day on which those subsections come into force.