Federal Victim Surcharge in New Brunswick: An Operational Review

Highlights of Report

Executive Summary

In January 2005, the Attorney General of Manitoba proposed to Federal Provincial and Territorial (FPT) Ministers Responsible for Justice that the amount of the federal victim surcharge in the Criminal Code be increased from 15% on fines to 20%. Ministers agreed to refer this issue to the FPT Working Group on Victims of Crime for consideration and to report back to FPT Deputy Ministers. In response to this initiative, New Brunswick was designated to further study the implementation of the federal victim surcharge in their province. The purpose of the present study is to document the imposition and collection process of the federal victim surcharge in the Provincial Court in New Brunswick.

The seven primary research questions were:

  1. Does New Brunswick assume automatic imposition unless waived by the judge and so are court forms developed in this way?
  2. Are policies directives in place related to Court administration of automatic imposition and are those directives being followed?
  3. What are the enforcement strategies in place in New Brunswick and what if any are the consequences of non-compliance?
  4. Is the default formula in the Criminal Code meaningful for collection and is it a meaningful consequence?
  5. What other options could be considered for collection and what are any impediments that would need to be overcome jurisdictionally to implement options other than default time as a penalty?
  6. What are the rates of imposition and compliance in New Brunswick?
  7. Why has the anticipated revenue to be generated in New Brunswick from the 1999 amendments to the Criminal Code provisions related to surcharge not been realized?

Unlike a fine, the purpose of the federal victim surcharge is to provide financial support to victim services, as well as, to provide a rational link between an offender’s crime and his/her accountability to the victim. The maximum value of the federal victim surcharge to be levied is 15% of a fine when a fine is imposed, $50 in the case of an offence punishable by summary conviction where a non-fine disposition is imposed (e.g., theft under $5000), and $100 in the case of an offence punishable by indictment (e.g., aggravated assault) where a non-fine disposition is imposed; or even an increased surcharge, at the discretion of the judge, in appropriate circumstances (Criminal Code 737.(3)).

The Criminal Code (737.(1) and 737.(5)) indicates that the federal victim surcharge should be imposed on all cases and that the only reason for waiving the federal victim surcharge is if the offender can prove that paying the federal victim surcharge would result in undue hardship to either him/herself or his/her dependents. If the court waives the federal victim surcharge, it is required to provide reasons why it is not being imposed and enter the reasons in the record of the proceedings (s.737(6)).

Since the introduction of the federal victim surcharge in 1989, and amendments in 1999 to automatically impose the surcharge, most jurisdictions have recovered only a portion of the anticipated revenue based on conviction, absolute and conditional discharge information available (Li, 2005). Despite this, little has been documented on the implementation of the federal victim surcharge.

Methodology

The methodology used in this study was predominantly qualitative in nature and was complemented with a few broad statistics on the implementation and collection of the federal victim surcharge culled from the New Brunswick Justice Information System (JIS). Assessments of awareness and attitudes towards the federal victim surcharge regime, as well as evidence surrounding the documentation, imposition and collection process of the surcharge was collected through interviews and surveys. The quantitative analysis was based on five years of justice data that permitted the calculation of the average imposition and collection rates, e.g., only monetary satisfaction, of the federal victim surcharge in the New Brunswick Provincial Court. A manual file review of 861 random cases from the year 2005-2006, drawn from the New Brunswick Justice Information System examined documentation practices surrounding the surcharge in 14 permanent locations of the Provincial Court in New Brunswick.

Quantitative Analysis: New Brunswick Justice Information System (JIS)

Data examined from the New Brunswick Justice Information System revealed the federal victim surcharge imposition rates across New Brunswick ranged from 22.9% in Moncton to 48.9% in the Fredericton region with a provincial average of 33.8% over a five-year period. Despite the variability in imposition rates, all regions exhibited high rates of collection, ranging from 79.9% to 85.2% of the imposed federal victim surcharge, with a provincial average of 82.7%. There is a low federal victim surcharge waiver rate on fine dispositions (25.2%) compared with non-fine dispositions in relation to summary (84%) and indictable (91.3%) offences. The lowest federal victim surcharge waiver rate is for driving under influence convictions (DUI) (26.0%) followed by drug convictions (61.6%) and non-violent property offences (72.8%).

Qualitative Analysis: Interviews/Surveys

A total of 22 key informants in the New Brunswick Criminal Justice System participated in the study. All participated through interviews with the exception of four (4) judges who responded in writing.

The primary key informants (n=5) included:

Additional interviews were conducted with:

All informants (n=22) were aware of the automatic nature of the federal victim surcharge process. Of the primary key informants and judges, the majority (9 of 11) had a positive attitude towards the federal victim surcharge. Concerns raised by primary key informants and judges included how generated revenues by the federal victim surcharge are spent and offenders not making the link between the federal victim surcharge and their victims. There were divergent views on whether there should be amendments to the Criminal Code to increase the imposed amount from 15% to 20%. Some primary key informants and judges (5 of 11) thought an increase in the surcharge might result in the federal victim surcharge being waived more frequently due to a perception that offenders cannot pay the federal victim surcharge. All judges (n=7) were opposed to a system where the federal victim surcharge would be mandatory and they would no longer have the discretionary power to enact the undue hardship exemption.

Results from the manual file review found judges are actively waiving the federal victim surcharge on a case-by-case basis rooted in the belief that the offender does not have the means to pay the surcharge. Despite this, the procedure for waiver of the federal victim surcharge found in s.737(5) of Criminal Code does not seem to be applied or documented consistently. The relevant sections state:

Exception
(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1).

Reasons
(6) When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings.

In 37% of the cases where the surcharge was waived, there was documentation noted in court records. The remaining 63% of the cases did not document the waiver in the file; however, this was not a reflection of the surcharge being forgotten, but rather a result of local practice/understandings at different court offices.

With respect to enforcing the collection of the federal victim surcharge many felt that jail time was not an effective consequence. Numerous suggestions were made to reduce the waiver rate and improve the collection rate of the federal victim surcharge; however, very few of these suggestions were deemed plausible, as extensive limitations were immediately identified or further feasibility assessments need to be conducted to assess their long-term value.

Conclusions

  1. There is a high level of awareness surrounding all aspects of the Federal Victim Surcharge (FVS).
  2. The average rates of imposition (33.8%) and collection (82.7%) in New Brunswick were noted over a five-year period from 2000-2005 based on 61,714 eligible dispositions from the New Brunswick Justice Information System.
  3. The anticipated revenue to be generated in New Brunswick from the 1999 amendments to the Criminal Code provisions related to surcharge have not been realized due primarily to high waiver rates. In fact, revenue has remained constant at pre-1999 Criminal Code amendment levels.
  4. Interviews with key informants revealed that many suspected the losses were due to low federal victim surcharge collection rates. This study suggests the opposite - that change must come from reduced waiver rates (currently at an average of 66.2%), to result in increased imposition rates (currently at an average of 33.8%), rather than increased collection rates (currently at an average of 82.7%).
  5. There is a low waiver rate on fine dispositions (25.2%) compared with non-fine dispositions related to summary (84%) and indictable (91.3%) offences. The lowest waiver rate is for driving under influence (DUI) (26.0%) followed by drug convictions (61.6%) and non-violent property offences (72.8%).
  6. It appears that one of the primary reasons judges feel that an offender cannot pay the federal victim surcharge is if they will be serving time, as only 4% with a custody order and 84% with no custody order had the federal victim surcharge imposed. Nonetheless, when collection rates were examined for offenders who have received a custody order, the average collection rate across the province is 52.8%, with a maximum FVS collection rate of 75.2% in Bathurst. This indicates that using a custody order as an indicator of an offender’s ability to pay the federal victim surcharge may not be the most sensitive measure.
  7. Policy directives are in place related to court administration of automatic imposition and these directives are being followed. All court locations had a system to ensure the federal victim surcharge was being automatically applied unless actively waived by the judge. There were consistent documentation practices within court locations; there was considerable variation, however, in the documentation practices between different Provincial Court locations. This conclusion is supported from the interview and the manual file review data.
  8. Interviews with key informants indicated that the primary criterion judges used for waiving the federal victim surcharge was the perception of the offender’s ability to pay. During the manual file review of 861 court files there was no documentation to indicate that evidence had been produced to prove “undue hardship” to the courts’ satisfaction, nor were reasons documented (in 99% of cases).
  9. The sole enforcement strategy of the federal victim surcharge regime in New Brunswick is incarceration according to the current default formula whereby an amount equal to eight times the provincial minimum wage can be satisfied for each day spent in jail. If, for example, an offender failed to pay a $50 surcharge, this would only result in a single day's incarceration, which in fact the offender does not serve. These levels are adjusted as the level of minimum wage changes.
  10. All stakeholders interviewed agreed the default formula in the Criminal Code was not a meaningful consequence in the collection process, as it does not generate income for victim services and costs the government money to incarcerate offenders.
  11. A difference in documentation practice did not impact collection rates either way. When the summons portion of the fine/surcharge order was filled out on the offender’s fine/surcharge order, there was not a consistent trend relating to the success of federal victim surcharge collection. That is, when the summons portion of the order was completed, sometimes greater collection rates were noted and in other regions, they were not. These findings are based on the manual file review.
  12. At present, the findings from this study indicate that the rationale underlying the federal victim surcharge is not being realized in New Brunswick – that is to make offenders accountable in some way to victims and to generate revenues for victim services. Offenders of serious crimes (Table 6), offenders who receive a custodial sentence (Table 7), and offenders who have been convicted of crimes involving victims (Table 8) are all having the federal victim surcharge waived.

Although the Criminal Code was amended in 1999 to provide provinces with more surcharge revenue to devote to services for victims of crime, in fact, in New Brunswick, the federal surcharge revenue has remained the same as pre amendments.

Recommendations

The data were analyzed with a view to providing recommendations for improving revenues from the federal victim surcharge in the province of New Brunswick. Within the constraints for this review, the recommendations present no obvious limitations and/or have been purported to have been implemented with success in other jurisdictions.

  1. In an attempt to address the high waiver rate and ensure the federal surcharge provisions of the Criminal Code are fully addressed, it is recommended that:

    • (i) The Department of Public Safety in partnership with the Department of Justice initiate the opportunity to meet once with the Chief Provincial Court Judge to provide information on the Victim Services Program and to determine the most effective mode to communicate program successes to the full judiciary. This should happen as soon as possible.

    • (ii) A feasibility study and possible pilot project based on its results be undertaken to further explore the offender's ability to pay in situations where offenders receive custody dispositions. The goal of such a study would be to produce concrete resources to aid judges in their decision making (e.g. alternative payment schedules, easy to use guidelines/tables), recognizing that surcharge amounts on non-fine dispositions are small ($50 for summary convictions, $100 for indictable offences).
  2. To maximize surcharge collection rates, the Department of Public Safety examine the feasibility of utilizing motor vehicle registration and/or driver's license renewal as a mechanism for satisfying the surcharge. As part of this feasibility assessment, the use of this option in other jurisdictions should be examined, as well as the success of using this as a remedy for non-payment.
  3. In order to better understand the positive and challenging aspects of federal victim surcharge regimes in other jurisdictions, it is recommended that similar research be conducted in other provinces and territories and results shared with relevant stakeholders and decision makers (e.g. Federal Provincial Territorial Working Group on Victims of Crime, FPT Deputies and Ministers Responsible for Justice).
  4. Given the disconnect between the intention of the 1999 amendments to the Criminal Code federal victim surcharge provisions and what is occurring, it is recommended that once research has been completed in other jurisdictions, a summary and discussion paper that focuses on this disconnect be provided to relevant stakeholders and decision makers (e.g. Federal Provincial Territorial Working Group on Victims of Crime, FPT Deputies and Ministers Responsible for Justice).