Legal-aid director anticipates new victim surcharge legislation will create a big problem
It’s a fairly new phenomenon in the court system, but one Nick Summers figures will become a big problem.
In October, the federal government implemented the Increasing Offenders’ Accountability for Victims Act which amended the Criminal Code of Canada to double the victim surcharge it imposes on offenders.
The act also makes it mandatory for judges to impose the fine in every case, without exception.
The act doubled the amount imposed to $100 for summary conviction offences and to $200 for indictable offences. In the case of a fine, the surcharge is now 30 per cent of any fine imposed.
The money raised through the victim surcharge is used by the province or territory where the crime occurred to help fund services to victims of crime.
Summers is the provincial director of the Newfoundland and Labrador Legal Aid Commission.
“We figure it’s going to become a big problem because an awful lot of the clientele we represent are not going to have the financial ability to pay these fines.”
Summers said because the changes affect only matters that have arisen since October, many people aren’t aware of it and won’t be until they go to court.
That’s now starting to happen.
Last week in Corner Brook, for example, Judge Wayne Gorman imposed a $500 victim surcharge on a man and said he had no other choice but to do so.
In the past, judges could waive the surcharge if imposing it would cause an undue hardship to the offender. Most often that occurred when a person wasn’t working or was in receipt of income support.
Not only can a judge not waive them now, said Summers, but there is a default period on paying the fine.
“It used to be a judge could give somebody six months to a year to make a payment. Now they can’t. Now it’s 30 days,” he said. “So what we’re expecting to see is a raft of people being called back in on default hearings because they haven’t paid.”
Summers said the person will then have to explain why they didn’t pay and a judge will have to decide whether to send them to jail.
“It’s a little unclear what happens next,” said Summers. “The judges are not going to want to start putting people in jail over a fine because doing the time is not even going to wipe out the fine, from the looks of it.
“It’s a bit of a mess,” he said, adding the commission anticipates it becoming a major problem.
“It’s going to impact on duty counsel because these defaults are going to be coming back to court and it’s going to start clogging up the courts.”
He said the imposition of the surcharge is going to end up costing more money than it’s going to generate.
“Because these default hearings, they may be simple, but they still use up court time and lawyers’ time.”
In response to a request for an interview, a spokesperson for the federal Department of Justice provided this information: “While this legislation did double the surcharge and make it mandatory, it also added a new provision to allow offenders to pay the amount owing by earning credits for work performed through provincial/territorial fine-option programs where they exist. This allows an offender to satisfy a financial penalty ordered as part of a sentence by earning credits for work performed in the province or territory where the crime was committed.
“It is up to each province and territory to decide if they want to expand their existing fine-options program to include the victim surcharge. The eligibility and terms of fine-option programs fall under the jurisdiction of the provinces and territories. As with other fines, a payment schedule is possible for the victim surcharge and the schedule is under the discretion of the judge. The Criminal Code requires the court to give the offender written notice of the amount owing for the victim surcharge, the manner in which it will be paid and the time for payment.”
The provincial Department of Justice was also asked to provide comment on the subject, and a spokesperson indicated the legislation was the responsibility of the federal government.
In an email, the Department of Justice spokesperson said, “In Newfoundland and Labrador all money collected from federal victim surcharge goes toward funding the victim services program. The victim surcharge is treated the same as all fines and surcharges by our fines and administration division. The fine stays with the provincial court until the deadline to pay is expired, then if it is not collected, it is considered as overdue and normal collection procedures will ensue.”
Summers said he has heard discussions among some of the commission’s lawyers about whether or not the surcharge could be challenged constitutionally.
“At this point I don’t know if there’s enough there for that.”
He said the commission’s senior criminal lawyer will look at the issue and recommend whether or not the commission should do anything.
Even then, Summers said, it will be a matter of finding the right case to argue.
“If you’re going to take the time and the money to do it, you want to make sure you got a case that’s going to stand up.”
The Western Star