Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada
4. Findings From Criminal Justice Professionals (continued)
- 4.10 Victim Surcharge
- 4.11 Conditional Sentences
4. Findings From Criminal Justice Professionals (continued)
4.10 Victim Surcharge
The victim surcharge is a penalty of 15% where a fine is imposed or a fixed amount of $50 or $100 for summary or indictable offences, respectively, and can be increased by the judge. It is imposed on the offender at sentencing and used by provincial and territorial governments to fund services for victims of crime. The 1999 amendments to the Criminal Code made the surcharge automatic in all cases except where the offender has requested a waiver and demonstrated that paying the surcharge would cause undue hardship.
The following discussion considers the issue of waiving the surcharge - both the frequency of waiver and whether waivers generally occur without an application by the defence.
4.10.1 Frequency of Waiver
While over half (58%) of judges surveyed reported that they generally apply the victim surcharge, over a third do not (37%).[35] When those who do not generally apply the surcharge were asked to explain, they reported that they do not apply the surcharge largely because the offender does not have the ability to pay (62%), although a few judges viewed the surcharge as inappropriate (6%) or questioned whether the funds are used to assist victims (5%). A third (31 %) of judges reported varying from the minimum surcharge. Of those, a few (3%) reported that they raised the surcharge; however most of the variances were to waive or lower it.
Victim services providers who were surveyed have a wide range of experience, but many could not answer the question on the victim surcharge. Those who did not respond are excluded from the results in order to give a more accurate depiction of whether victim services providers think that the surcharge is waived too often. Crown Attorneys, defence counsel, and advocacy group respondents who did not answer were also excluded from the results for reasons of consistency in handling the data. Of those who provided an answer, approximately two-thirds of victim services providers and Crown Attorneys agreed that the victim surcharge is waived more often than it should be. In contrast, 11% of defence counsel believe that the surcharge is waived too often. Table 77 provides the results for those who could respond to this issue.
| Victim Services (n=82) | Crown Attorneys (n=161) | Defence Counsel (n=170) | Advocacy Groups (n=15) | |
|---|---|---|---|---|
| Yes | 66% | 70% | 11% | 47% |
| No | 34% | 30% | 89% | 53% |
Those interviewed (Crown Attorneys, victim services providers, and defence counsel) attributed the frequent waiver of the surcharge to judicial attitudes. According to several Crown Attorneys interviewed, the surcharge is not seen as an integral part of the criminal justice system, and, therefore, judges are quite prepared to waive it.[36] Crown Attorneys and victim services providers believe that virtually any reason appears to constitute a sufficient ground to waive the surcharge, even though the surcharge amount is so small that only in extraordinary circumstances should the offender be considered unable to pay it. Several victim services providers said that judges often accept defence counsel requests to waive the surcharge without requiring evidence of the offender's financial situation. They believe that judges do not understand the importance and usefulness of the surcharge. In addition, they found that the surcharge is rarely imposed in certain kinds of cases, such as sexual assault and domestic violence. Defence counsel who believe that the surcharge is waived too often said that they found a judicial reluctance to place too high a monetary penalty on offenders.[37]
In contrast, those interviewed who believe that judges waive the surcharge appropriately said that waivers occur when its imposition would cause the offender undue hardship, such as when the offender has no independent means of financial support, when the victim and the offender are in the same family unit, or when the offender is going to be incarcerated. They believe that judges appropriately consider the circumstances of the offender in their decision to waive the surcharge, and they do not see judicial attitudes or judicial dislike of the surcharge as an issue.
4.10.2 Application for Waiver
Section 737 (5) of the Criminal Code requires an application from the offender to waive the surcharge. Most defence counsel surveyed (59%) reported that they do not generally request a waiver, while about one-third (35%) said that they do. In interviews, those who request waivers said that they do so when the offender has no ability to pay (e.g., does not have a job, is on social assistance, is being incarcerated for a long period of time). A majority of defence counsel surveyed (59%) reported that most of the time judges grant their requests for a waiver.
Six percent of surveyed Crown Attorneys generally challenge defence counsel applications to waive the surcharge. In interviews, Crown Attorneys explained that contesting defence counsel applications is very difficult. There is usually no time to challenge the application because things move very quickly at that stage of the proceedings. More importantly, Crown Attorneys said that they rarely have any information or proof to contest the reasons presented by defence counsel as grounds for the waiver.
In addition, Crown Attorneys who were interviewed noted that there is frequently no application to challenge because the judge has waived the surcharge on his or her own initiative. Survey results support this, with a majority of Crown Attorneys (54%) reporting that judges generally waive the surcharge without a defence counsel request. However, only one-quarter of defence counsel (24%) believe that judges waive the surcharge without a request. In interviews, they commented that judges diligently inquire about whether the surcharge should be imposed and generally impose the surcharge automatically unless there is a legitimate request to waive it.
A few did note that when judicial waivers occur without explicit defence counsel requests, the judge has already received information about the accused's financial situation and other relevant personal circumstances.
Table 78 provides the Crown Attorney and defence counsel survey results on whether judges generally waive the surcharge without a defence counsel request.
| Crown Attorneys (N=188) | Defence Counsel (N=185) | |
|---|---|---|
| Yes | 54% | 24% |
| No | 33% | 64% |
| Don't know | 4% | 8% |
| No response | 10% | 4% |
Note: One column does not sum to 100% due to rounding.
4.11 Conditional Sentences
The Criminal Code permits judges to order that sentences of less than two years' imprisonment be served in the community instead of in jail. Conditional sentences may be imposed only when the court is convinced that the offender poses no threat to public safety. They are accompanied by restrictive conditions that govern the behaviour of the offender and strictly curtail his or her freedom. The following sections describe the perspectives of criminal justice professionals on the appropriateness and use of conditional sentences.
4.11.1 Cases Appropriate for Conditional Sentences
Across all respondent categories, there is widespread agreement that conditional sentences are appropriate in non-violent offences. Defence counsel are much more likely than the other respondent groups to think that conditional sentences are appropriate in all offences, in family violence offences, and in offences against the person. See Table 79 for the details.
| Victim Services (N=318) | Crown Attorneys (N=188) | Defence Counsel (N=185) | Advocacy Groups (N=47) | |
|---|---|---|---|---|
| All offences | 6% | 4% | 29% | -- |
| Non-violent offences | 65% | 62% | 44% | 2% |
| Family violence offences | 5% | 16% | 32% | 17% |
| Offences against the person | 6% | 15% | 34% | 15% |
| Where offender is eligible | -- | 11% | 12% | -- |
| Depends on case or circumstances | 3% | 11% | 13% | 9% |
| Minor offences | 4% | 6% | -- | 6% |
| No prior record or good rehabilitation prospects | 6% | 6% | 4% | -- |
| All offences except most serious | -- | -- | 11% | -- |
| Less serious violent offences | -- | -- | 2% | -- |
| If victim is comfortable with sentence | 3% | -- | -- | -- |
| Never or rarely | 2% | 7% | -- | 6% |
| Other | 3% | 3% | 3% | 11% |
| No response | 12% | 3% | 1% | 9% |
Note: Respondents could provide more than one response; totals sum to more than 100%.
Crown Attorneys and defence counsel explained in interviews that conditional sentences are appropriate in eligible cases, that is, in all cases except those where the minimum sentence is more than two years, and where it has been established that the offender is not a threat to public safety. However, several Crown Attorneys as well as victim services personnel believe that conditional sentences are not appropriate for violent or repeat offences, since these do not meet the basic criterion of no danger to the public. Moreover, a few Crown Attorneys believe that this criterion should be interpreted more broadly to encompass certain white-collar crimes (such as breach of trust thefts where the offender has stolen a substantial amount of money) and crimes where the safety of a single individual, namely, the victim of the original crime, might be at risk if a conditional sentence were imposed. It was also suggested by several Crown Attorneys, defence counsel, and victim services providers that conditional sentences are appropriate where the risk of recidivism is zero and where there is good reason to believe that the offender is able and motivated to rehabilitate.
Several victim services providers stated in interviews that in order for a conditional sentence to be appropriate, the accused must take full responsibility for the offence, demonstrate remorse, and show that he or she can respect the conditions imposed. A few victim services providers believe that the decision to impose a conditional sentence should take into account the consequences of the crime on the victim, and emphasized that the victim should have input into the decision.
4.11.2 Consideration of Victim Safety in Conditional Sentences
As Table 80 shows, the vast majority (93%) of Crown Attorneys surveyed usually request conditions for the victim's safety in conditional sentences. Similar proportions of defence counsel and judges surveyed usually agree to and grant such requests. Almost all defence counsel explained that they agree to conditions because the protection of victim safety is a valid sentencing principle. In interviews, they expanded on this idea, citing the legal requirement to consider the public safety and the fact that the presumption of innocence no longer applies. However, several defence counsel reported that they usually agree to conditions because they will not receive a conditional sentence without them. Several defence counsel said that they agree to conditions if they are requested by or are in the best interests of the client, do not unduly restrict the offender (e.g., from access to his belongings or home), and are legitimately connected to the offence and the victim.
| Crown Attorneys (N=188) | Defence Counsel (N=185) | Judiciary (N=110) | |
|---|---|---|---|
| Do you generally request conditions for the victim's safety? | Do you generally agree to conditions for the victim's safety? | Do you generally grant conditions for the victim's safety? | |
| Yes | 93% | 94% | 94% |
| No | 1% | 2% | 4% |
| Don't know | 2% | 3% | 2% |
| No response | 4% | 1% | 1% |
Note: Totals may not sum t 100% due to rounding.
Nevertheless, just over one-quarter of victim services providers and advocacy organizations surveyed (29% and 26%, respectively) believe that the victim's safety is generally considered in the decision to impose a conditional sentence. Perceived obstacles to the consideration of victim safety in conditional sentences are shown in Table 81 below. Many of these obstacles are similar to those identified as prevailing at bail decisions, including inadequate consultation with victims; difficulties assessing risk; the protection of the rights of the accused; and lack of knowledge about domestic violence and the dynamics of abuse on the part of prosecutors and judges.
| Reason: | Victim Services (n=117) | Advocacy Groups (n=29) |
|---|---|---|
| Victim not adequately consulted | 19% | 7% |
| Difficulties assessing risk | 16% | -- |
| Rights of accused take precedence over victim's rights | 13% | 17% |
| Lack of knowledge about domestic violence and dynamics of abuse | 12% | 35% |
| Poor enforcement or conditions breached | 8% | -- |
| Proximity of accused and victim not considered | 6% | -- |
| Judge or Crown Attorney attitudes | 4% | -- |
| Other factors given more weight in sentencing | 4% | 3% |
| Other | 7% | 17% |
| No response | 24% | 31% |
Note: Respondents could provide more than one response; totals sum to more than 100%.
In interviews, several victim services providers as well as Crown Attorneys remarked that there is a lack of resources for supervision and enforcement of conditional sentences and that, consequently, offenders are not being adequately punished for breaches. Concern was expressed by both groups of respondents that unless conditional sentences are accompanied by rigorously enforced restrictions on freedom, they do not serve as a deterrent, but rather as positive reinforcement for criminal behaviour. Thus, although most Crown Attorneys and victim services providers acknowledged that there is a place for conditional sentences, they think that they should be used with caution, and a few think that they should be eliminated altogether.
In interviews, several Crown Attorneys and victim services providers also suggested that the conditions imposed on offenders serving a conditional sentence are generally too lenient and do not sufficiently restrict offenders' freedom. Crown Attorneys and victim services providers believe that conditional sentences need to be accompanied by significant restrictions on the offender's liberty. A few Crown Attorneys argued, for example, that rather than simply being required to abide by a curfew, offenders should be under house arrest 24 hours a day, seven days a week, except to go to work. It was also suggested that it should be mandatory for offenders serving conditional sentences to have a landline and not just a cellular telephone, to facilitate monitoring of their whereabouts and enforcement of conditions.
In general, Crown Attorneys and victim services providers who were interviewed believe that conditional sentences should involve maximum confinement and supervision. A few victim services providers believe that conditional sentences are misunderstood by the public and by victims and thereby contribute to the erosion of public confidence in the criminal justice system. According to these respondents, too many offenders receive conditional sentences and, as a result, many victims feel as though the criminal justice system does not take them seriously.
- [35] The remaining 5% of judges did not respond to the question.
- [36] Crown Attorneys at one large site, where the surcharge is reportedly never applied, said that judges are offended if the Crown even mentions it.
- [37] A few noted that when a fine is imposed, the victim surcharge is more likely to be waived.
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