Victim Fine Surcharges
Today, the Supreme Court of Canada released its decision in four cases, heard together as R v Boudreault, 2018 SCC 58. The decision concerned the constitutionality of the “victim fine surcharge” under s. 737 of the Criminal Code. A majority of the Supreme Court (Côté and Rowe JJ. dissenting) allowed the appeals, finding that s. 737 infringes s. 12 of the Charter and is not saved by s. 1. The section was invalidated with immediate effect.
“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.” – Martin J. at para 3
In effect, the majority decision finds that mandatory victim fine surcharges criminalize poverty.
Until today, under s. 737 of the Criminal Code, everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act was required to pay monies to the state as a mandatory victim fine surcharge. The amount of the surcharge was 30 percent of any fine imposed, or, where no fine is imposed, $100 for every summary conviction count and $200 for every indictable count. Although sentencing judges had the discretion to increase the amount of the surcharge where appropriate, they could not decrease the amount or waive the surcharge for any reason. The imposition of the surcharge could not be appealed.
The offenders in the cases before the Court all live in serious poverty and face some combination of addiction, mental illness, and disability. They each challenged the constitutionality of the victim fine surcharge on the basis that it constituted cruel and unusual punishment, contrary to s. 12 of the Charter, violated their right to liberty and security of the person, contrary to s. 7 of the Charter, or both. While the results were mixed at sentencing, the respective courts of appeal rejected the constitutional challenges.
The Supreme Court of Canada Finding
Writing in one of her first major cases since being appointed to the Court, Martin J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown JJ. concurring) found that the mandatory victim fine surcharge constitutes punishment, engaging s. 12 of the Charter, and that its imposition and enforcement on several of the offenders, as well as the reasonable hypothetical offender, results in cruel and unusual punishment. The surcharge could not be saved under s. 1. It was thereby unnecessary for the Court to consider whether s. 7 of the Charter was infringed.
The surcharge constituted punishment because it flowed directly and automatically from conviction and s. 737(1) itself sets out that it applies “in addition to any other punishment imposed on the offender.” The surcharge also functions in substance like a fine, which is already an established punishment, and it is intended to further the purpose and principles of sentencing.
Further, the surcharge was found to constitute cruel and unusual punishment – and therefore to violate s. 12 – because its impacts and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.
“When examined together, the circumstances of the actual appellants, Mr. Boudreault and Mr. Larocque, and the reasonable hypothetical offender, Mr. Michael, reveal striking similarities. All live in serious poverty. All have precarious housing situations. All struggle with addiction. In addition, Mr. Larocque and Mr. Michael grew up under child protection and have physical disabilities. Mr. Michael is Indigenous.
[…] Without a doubt, offenders with some or all of these characteristics appear with staggering regularity in our provincial courts. Given this reality, referring to ‘hypotheticals’ in this case is somewhat of a misnomer. The ‘reasonable hypothetical’ offender urged on this Court is Mr. Michael; not a fabrication, but a real person.” – Martin J. at paras 54-55
In the circumstances of the cases before the Court, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. The Court found, as it has many times before, that sentencing is an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they were not.
For the offenders in this case and for the reasonable hypothetical offender, the surcharge leads to a grossly disproportionate sentence. The Court recognized that the surcharge advances a valid penal purposes of raising funds for victim support services and of increasing offenders’ accountability to both individual victims of crime and to the community generally. But it also causes four interrelated harms to persons like the offenders. First, it causes them to suffer deeply disproportionate financial consequences, regardless of their moral culpability. Second, it causes them to live with the threat of incarceration in two separate and compounding ways — detention before committal hearings and imprisonment if found in default. Third, the offenders may find themselves targeted by collections efforts endorsed by their province of residence. Fourth, the surcharge creates a de facto indefinite sentence for some of the offenders, because there is no foreseeable chance that they would ever be able to pay it. This ritual of repeated committal hearings, which will continue indefinitely, operates less like debt collection and more like public shaming. Indeterminate sentences are reserved for the most dangerous offenders and imposing them in addition to an otherwise short-term sentence flouts the fundamental principles at the very foundation of our criminal justice system.
“[…] no funds can be raised from individuals who have none to spare. Furthermore, […] the enforcement of the surcharge against impecunious or impoverished offenders places a significant burden not only on these individuals, but on our courts and penal institutions as well. These measures are likely to cost the government much more than it could ever recoup from this group of offenders and to add to the strain of an already overburdened criminal justice system” – Martin J. at para 63
The Court also found that the surcharge disregards the principle of proportionality in sentencing, in that it wrongly elevates the objective of promoting responsibility in offenders above all other sentencing principles, it ignores the fundamental principle of proportionality set out in the Code, it does not allow sentencing judges to consider mitigating factors or the sentences received by other offenders in similar circumstances, it ignores the objective of rehabilitation, and it undermines Parliament’s intention to ameliorate the serious problem of overrepresentation of Indigenous peoples in prison. The cumulative charge-by-charge basis on which the surcharge is imposed increases the likelihood that it will disproportionately harm offenders who are impoverished, addicted and homeless. It will also put self-represented offenders at an additional disadvantage because they may not know that they may negotiate the terms of their plea in order to minimize the amount of the surcharge. While judicial attempts to lessen the disproportion may be salutary, they cannot insulate the surcharge from constitutional review. Reducing some other part of the sentence may minimize disproportion, but it cannot eliminate the specific and extensive harms caused by the surcharge. Moreover, imposing a nominal fine for the sole purpose of lowering the amount of the surcharge would ignore the legislature’s intent that the surcharge, in its full amount, would apply in all cases as a mandatory punishment.
“If anything, the cumulative charge-by-charge basis on which the victim surcharge is imposed increases the likelihood that it will disproportionately harm offenders who are impoverished, addicted, and homeless. These circumstances will often bring them into conflict with the law” – Martin J. at para 86
It was unnecessary for the Court to engage in a s. 1 Charter analysis, because the state did not put forth any argument or evidence to justify the surcharge if found to breach Charter rights.
As such, s. 737 of the Criminal Code was declared unconstitutional and of no force and effect immediately. The state was determined not to have met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law.
But the offenders in the cases before the Court would not be so lucky. The majority found that reading back in the judicial discretion to waive the surcharge that was abrogated in 2013 was the wrong approach, because it is a highly intrusive remedy, and because Parliament ought to be free to consider how best to revise the imposition and enforcement of the surcharge. In their view, given the lack of submissions on the issue, it would be inappropriate to grant a remedy to offenders not involved in this case and those no longer in the system who cannot now challenge their sentences. However, the majority suggested a variety of other remedies: the offenders may be able to seek relief in the courts, notably by recourse to s. 24(1) of the Charter; or the government could proceed administratively, while Parliament may act to bring a modified and Charter-compliant version of the surcharge back into the Code.
With this decision, the victim fine surcharge is not only no longer mandatory – it cannot be imposed at all. There was no suspension of the declaration of invalidity. Of note is that there is currently legislation before Parliament that would have amended s. 737 of the Criminal Code, such that it would have given judges the discretion to waive the imposition of the surcharge, but on terms different that those of the former s. 737(5). In light of the SCC’s decision in Boudreault, it is likely – in fact, it is necessary that – Parliament re-evaluate their approach to this issue.