OTTAWA, ONTARIO--(Marketwired - Oct. 21, 2016) - Department of Justice Canada
The Government of Canada is committed to ensuring that our criminal justice system meets the highest standards of equity and fairness, holds offenders to account, shows compassion to victims, and upholds the Charter of Rights and Freedoms.
In keeping with this commitment, today the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, introduced legislation to amend the federal victim surcharge provisions in the Criminal Code that unfairly burden the less fortunate.
The federal victim surcharge is a monetary penalty that is automatically imposed on offenders at the time of sentencing, cumulatively for each offence. Money collected from offenders is used by provinces and territories to help fund programs and services for victims of crime.
In 2013, as part of the Increasing Offenders' Accountability for Victims Act, judges lost the discretion to waive the federal victim surcharge for offenders who are truly unable to pay. As a result, the surcharge is currently imposed on all offenders, for all offences, regardless of their true capacity to pay or individual circumstances. This has led to multiple Charter challenges.
The proposed changes would return to judges the discretion to waive the federal victim surcharge if an offender is truly not able to pay. However, to ensure that offenders are held to account, the federal victim surcharge would continue to apply to all other offenders, and the surcharge amounts would not change. The funds collected will continue to help support the delivery of services to victims in the province or territory where the offence occurred, as a complement to the federal Victims Fund.
The proposed amendments would uphold the objectives of the surcharge while freeing the courts of Charter challenges, redirecting focus onto holding serious criminals to account, and eliminating the administrative costs associated with collecting money from people who simply do not have the means to pay.
"These changes directly address the many Charter challenges the victim surcharge has faced because of the way it affects the most marginalized people. With these changes, the surcharge would continue to help support victim services and help hold offenders accountable to victims of crime in a way that takes into consideration the individual circumstances of offenders and that is in keeping with the Canadian Charter of Rights and Freedoms."
Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada
- Money collected from offenders through the victim surcharge would continue to help fund programs and services for victims of crime.
- As part of the Government of Canada's commitment to ensuring that services to victims of crime are properly funded, the federal Victims Fund aims to give victims of crime a more effective voice in the criminal justice system. In 2016-2017, more than $21 million was made available to provincial and territorial governments and non-governmental organizations to increase awareness and knowledge of victim issues, legislation, and services available, as well as to develop and deliver victim programs, services, and assistance to meet gaps in services for victims of crime.
- On August 3, the Government also announced $16.17 million over four years for the creation of Family Information Liaison Units in each province and territory and to increase funding for victims services to provide culturally-appropriate victim services for families of missing and murdered Indigenous women and girls and survivors of violence.
- Backgrounder - Federal Victim Surcharge
Court discretion on federal victim surcharges
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Federal Victim Surcharge
About the federal victim surcharge
The federal victim surcharge is a monetary penalty that is automatically imposed on offenders at the time of sentencing. Money collected from offenders is intended to help fund programs and services for victims of crime.
Why the current changes are being proposed
Although the existing Increasing Offenders' Accountability for Victims Act, which came into force in 2013, sought to increase offenders' accountability to victims of crime, the mandatory application of the federal victim surcharge to all offenders, even those who genuinely lacked the ability to pay, has resulted in a number of Charter challenges.
For instance, in R. v. Shaun Michael, the judge found that the victim surcharge amounted to cruel and unusual punishment for a homeless man struggling with addiction and living on a street allowance of $250 a month. This individual faced a total of $900 in victim surcharges resulting from nine offences the judge described as "nuisance crimes" committed while he was intoxicated one evening.
What the proposed legislation would do
Under the proposed legislation, the amounts of the federal victim surcharge would not change. Moreover, the proposed legislation clarifies that the surcharge is to be automatically applied at sentencing and that it is to be applied to each offence cumulatively.
However, in order to address concerns related to the adverse impacts on marginalized offenders, the proposed legislation provides limited judicial discretion in relation to both the mandatory and the cumulative imposition of the surcharge in certain circumstances:
The proposed amendments to the legislation would authorize a sentencing court to exempt payment of the surcharge if an offender applies for a waiver and demonstrates that payment would cause them undue hardship. To avoid reverting to the pre-2013 situation, the proposed legislation would clarify that undue hardship relates to the financial inability to pay for reasons such as unemployment, homelessness, and significant financial obligations to dependants. Incarceration for the offence committed by the offender does not, on its own, constitute undue hardship.
If an offender had multiple offences related to failures to appear before a court or breaches of certain conditions of a police release or of a court order (such as bail conditions), the court could reduce the number of surcharges for these types of administration-of-justice offences to ensure that the total sum of victim surcharges is not disproportionate under the circumstances. This reduction would not apply to breaches that cause harm to a victim.
The court would be required to provide reasons for any exemption or exception from the mandatory application of the victim surcharge to each offence. The proposed amendments aim to address the underlying concerns raised by Charter challenges without reverting to the earlier situation where the victim surcharge was rarely imposed.
Funding for services to victims of crime
The federal victim surcharge will continue to provide funding to victim services while holding offenders accountable to victims of crime. Provinces and territories administer and manage the collection and use of the revenue.
At the same time, the Government of Canada is helping to provide stable funding and support for services to victims and survivors of crime, including via the federal Victims Fund. The Victims Fund provides grants and contributions to the provinces and territories to support projects and activities that increase awareness and knowledge of victim issues, legislation, and available services. It is also used to develop and deliver victim programs, services, and assistance to meet gaps in services for victims of crime. More information about the Victims Fund and how to apply for project funding is available from the Justice Canada website.