The Supreme Court of Canada has declared that a Mandatory Victim Surcharge is unconstitutional in that it imposes cruel and unusual punishment on poor defendants, contrary to the protections provided by the Charter of Rights and Freedoms.
In R. v. Boudreault the Supreme Court considered the constitutionality of section 737 of the Criminal Code. Under this section of the Code every person who is discharged, pleads guilty, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act is required to pay the state as a mandatory victim surcharge. Until this decision, judges were obligated to impose a one-size-fits-all Victim Surcharge; judges were not permitted to consider the circumstances, the means of the person required to pay the fee, or the impact that paying the fee would have on their lives.
For people convicted of multiple charges these fines could get quite large, and where a person was unable to pay the surcharge, this amounted to an indefinite sentence. A person unable to pay a Victim Surcharge could be taken into police custody, imprisoned for default, prevented from seeking a pardon or targeted by collections agencies. This applied to everyone regardless of their financial resources.
A Brief History of the Victim Surcharge in Canada
Section 737 has been a part of the Criminal Code since 1989. Under the 1989 provisions, the surcharge was set at $35 or 15 percent of any fine imposed by a court. This amount remained the same whether a person was convicted of a summary-conviction offence or a more serious indictable offence. In every case, judges had the discretion to waive the surcharge in cases where it will cause undue hardship to the convicted.
In 2013, the Federal government passed the Increasing Offenders’ Accountability for Victims Act. This Act increased the surcharge to $100 for summary conviction offences, $200 for indictable offences or 30 percent of any fine. Importantly, judges were no longer allowed to reduce or waive the fee, even when the offender was poor, the surcharge would cause undue hardship to the convicted, or where there was no realistic chance that the offender would be able to pay.
Under this arrangement, once the Victim Surcharge was applied, an individual remained indebted to the state until the amount of the surcharge was paid in full. This arrangement, and particularly the inability of judges to exercise discretion over whether a surcharge should be applied at all, drew widespread criticism Lower courts and commentators alike have pointed out that the mandatory Victim Surcharge had disproportionate impacts on offenders living in poverty.
Some judges would try to circumvent the Victim Surcharge by, for example, imposing a fine of $1.00 which imposed a Victim Surcharge of 30 percent, or $.30. Some judges imposed the Victim Surcharge but then gave them 99 years to pay.
R v Boudreault: The Supreme Court of Canada considers victim surcharges
In R v. Boudreault, the Supreme Court considered the appeals of seven different people. Each of these appeals were concerned with whether the mandatory victim surcharge is consistent with section 12 of the Canadian Charter of Rights and Freedoms. While the crimes committed by each appellant were in no way related, each person was ordered to pay a victim surcharge fee, and each was seriously challenged in making this payment. Some of the appellants suffered from drug addiction, others from mental illness and others from disability. All were poor.
Mr. Boudreault’s story is indicative of the others. In September 2013, Mr. Boudreault pled guilty to charges including breaches of probation, breaking and entering, sale of stolen goods, assault with a weapon, and possession of a prohibited weapon. At the time he was sentenced, he was 21 years old. He had no high school education, had never held a steady job and had had no income for almost two years. At the time of sentencing, he was homeless, unemployed, and addicted to drugs.
In addition to his criminal sentence, Mr. Boudreault was required to pay the Victim Surcharge for each of the offences that he pled guilty to. If the full amount were applied for each charge, this would have totalled $4,000, although this amount was reduced to $1,400 by the sentencing judge. Mr. Boudreault appealed his sentence on the basis that requiring him to pay the Victim Surcharge amounted was a violation of his Section 12 Charter right to be free from cruel and unusual punishment.
The Supreme Court sided with Mr. Boudreault and the other appellants. It found that the mandatory surcharge amounted to cruel and unusual punishment because its effects create circumstances that are grossly disproportionate and outrage the standards of decency. The Court discussed these impacts in terms of four interrelated harms to the appellants:
(1) the disproportionate financial consequences suffered by the indigent,
(2) the threat of detention and/or imprisonment,
(3) the threat of provincial collections efforts, and
(4) the enforcement of de facto indefinite criminal sanctions.
The Court acknowledged that the Victim Surcharge disproportionately impacts people who are poor and marginalized. Justice Sheilah Martin, writing for the Court stated:
“Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized. When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence. As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies. In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization.”
Lawyers at BOYNECLARKE LLP are skilled in dealing with all matters of criminal offences including assault, fraud and driving under the influence. If you have been charged with a crime contact one of the members of our Criminal Law team.
 R. v. Boudreault, 2018 SCC 58 (CanLII), <http://canlii.ca/t/hwkqj>.
 Increasing Offenders’ Accountability for Victims Act, SC 2013, c 11, <http://canlii.ca/t/52m9v>.