Federal Victim Surcharge in New Brunswick: An Operational Review

3. Results

3. Results

The results are presented in the following order: 1) data generated from the New Brunswick Justice Information System, 2) information extracted from the manual file review from the courthouses, followed by 3) interviews and surveys with key informants.

3.1. Quantitative Data: New Brunswick Justice Information Service

The Department of Justice New Brunswick provided data from 2000-2001 to 2004-2005 fiscal years. Fiscal information pertaining to payment of fines and federal victim surcharge was available for all five fiscal years. The database consisted of 40,427 cases encapsulating 61,714 eligible dispositions. The majority of these cases had only a single surcharge imposed. A total of 19,794 surcharges were imposed over the five-year period generating a total of $1,299,478 for Victim Services New Brunswick. More surcharges were imposed on fine dispositions (13,667 of 16,419) compared to non-fine dispositions (6127 of 45,295).

A sample of 861 cases, from 2005-2006, was manually reviewed from all 14 Provincial Court permanent locations covering all six administrative regions in New Brunswick: Moncton, Saint John, Fredericton, Edmundston, Bathurst and Miramichi. In the 540 cases where the federal victim surcharge was waived, there was no documentation of the waiver in the file in 202 cases (37.4%) and of those 338 cases where the waiver was documented, five cases documented reasons. In other words, 99% of the time the federal victim surcharge was waived, no reason was documented in the file substantiating the waiver.

This practice is inconsistent with the legislation which states in s.737(6), “When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings.” Nonetheless, there is evidence that consistent practices exist that have evolved locally and which follow a systematic method of waiving the federal victim surcharge. It should be noted, however, that oral communications among court personnel often play an important role in this process and may be substituting for written documentation in the court proceedings.

The next two sections explore the findings related to the imposition and/or waiver rates (section 3.1.1) and the collection rates (section 3.1.2) for the federal victim surcharge.

3.1.1. Imposition Rates of Federal Victim Surcharge

The data were initially surveyed to document the overall rates of imposition and collection of the federal victim surcharge. Table 1 provides the imposition rates, after decisions regarding waivers, of the federal victim surcharge and these ranged from 22.9% in Moncton to 48.9% in the Fredericton region. Table 1 shows that all regions exhibit high rates of collection, ranging from 79.9% to 85.2% of imposed federal victim surcharge. It is clear that it is the high waiver rate of the federal victim surcharge that is primarily responsible for the reduction in possible revenue. For instance, examining the bottom row in Table 1 the difference between the possible maximum surcharge for the entire province and the surcharge imposed after waivers, i.e., the revenue not realized due to waivers, was $3,069,844.

Table 1: Imposition and Collection of Federal Victim Surcharge Across Six New Brunswick Regions: 2000-2005

Federal victim surcharge collection rates were examined according to whether or not the summons portion of the fine/surcharge order was completed as part of the fine/surcharge order. The summons portion of the fine/surcharge order compels the offender to return to court on a stated date if the fine and/or surcharge has not been satisfied by the due date. Correlations were generated on a regional basis. There was no significant relationship between having the summons portion completed and payment of the federal victim surcharge in three of the regions, while Saint John (r=.38, t=5.44, df=173, p<.005) and Bathurst (r=.17, t=2.30 df=175, p<.01) regions indicated that there was a significantly higher rate of payment when the summons portion was attached to the fine/surcharge orders. Conversely, Moncton displayed an inverse relationship (r=-.21, t=-2.82, df=173, p<.01), indicating that when default orders were attached the offender was actually less likely to pay.

Table 2: Imposition and Collection of FVS, Presented Per Number of Convictions in the Six New Brunswick Regions

3.1.1.1.Imposition of the FVS

The next three tables report on the various imposition rates related to fine and non-fine dispositions. Table 3 reports on the surcharge imposed compared to the maximum that could possibly be imposed on fine dispositions. There were 16,419 fine dispositions during the five year period, presenting the possibility of generating $1,591,703 dollars if the maximum FVS were imposed on all convictions. In actuality, there was $1,197,399 imposed, a 75% imposition rate and a 25% waiver rate. This represents a significantly higher rate of imposition/lower rate of waiver on the fine dispositions compared to non-fine dispositions reported on next (Tables 4 and 5).

Table 3: Fine Dispositions: Surcharge Imposed (after waiver decision) Compared to Maximum[2]

Summary convictions are less serious offences under the Criminal Code having lower maximum sentences and simplified court procedures. There were a total of 29,602 summary convictions in New Brunswick during the 5 year study period, presenting the possibility of generating $1,480,100 in revenue. A total of $236,995 was actually imposed on summary convictions, an imposition rate of 16% and a waiver rate of 84%. This is a substantial drop from the 75% imposition rate for fine dispositions. The average surcharge amount imposed per summary conviction is $8.00.

Table 4: Summary Convictions: Surcharge Imposed (after waiver decision) Compared to Maximum

Finally, the proportion of maximum surcharge imposed on indictable offences was examined (Table 5). Again, there was another significant drop in maximum imposition rates to 8.7% or waiver rates of 91.3% with an average surcharge imposed $8.72 per conviction; a similar rate to summary convictions at $8.00 average surcharge imposed per conviction.

Table 5: Indictable Convictions: Surcharge Imposed Compared to Maximum

The imposition rate was then examined according to the nature of the offence (Table 6). This information is an indication of the discretionary nature of sentencing and imposition practices of judges. Judges take into account factors such as the nature of the offence, among many others, when deciding on the appropriate sentence and waiver of the FVS. The discretionary nature of the FVS is clearly reflected in waiver practices by provincial court judges; Driving Under the Influence (DUI) consistently had the lowest rate of waiver for each region and the highest average surcharge per convicted case ($74.28 to $143.45) (Table 6). Similarly, drug offences had the next lowest waiver rate for each region. The database coding did not permit a clear break down of violent vs. non-violent crimes. Therefore, it is recognized that the grouping of offences is less than ideal. Violent offences include sexual assault, and offences against persons, and non-violent offences include motor vehicle violations and property offences, for example. Interestingly, those crimes that involved an offence against a person consistently had the FVS waived at the highest rates across all regions. Recalling information from the interviews with court personnel, this appears to be a function of a “blanket” waiver strategy for custody orders, which are the typical sentence for crimes against a person. This highlights the disjoint between one of the primary purposes of the FVS - having the offender directly compensate their victim - and the court practices of imposing the FVS.

Table 6: Nature of Offences: Surcharge Imposed (after waiver decision) Compared to Maximum

The next table, Table 7, may well present the most striking results of this study. It is readily apparent from this data that when an offender is sentenced to serve time the imposition rate of the FVS drastically drops, or in other words, the waiver rate drastically rises for custodial sentences. For instance, looking at Moncton, there is an imposition rate of 83.1% when the offender is fined, which drops to less than 4% when she/he is assigned to custody. Again, this is due to the perception by judges, as noted from interviews, that there are no resources available to the offender to satisfy any monies imposed if they are going to serve a sentence. The imposition rates of the FVS vary from 2.5% to 20.2% for custody orders across the six regions. It is notable that in the Miramichi region, the actual imposed surcharge surpassed the maximum anticipated revenue (106.4%), as the judges were exercising their right to impose beyond the 15% FVS, thereby generating more than the anticipated revenue.

In a large portion of the cases, the automated database provided information on whether or not a victim was identified in the case. This information is relayed in Table 8. Once again the lack of congruence between the underlying philosophy of the victim surcharge and the imposition of the FVS was apparent. In every region, those convictions involving a victim, e.g., child, wife, stranger, had a lower FVS imposition rate, or higher waiver rate, than those cases where no victim was identified. The mitigating factor mentioned before is the waiver by judges based on an offender's perceived inability to pay when a custody order is applied.

Turning to possible gender differences in the imposition/waiver process (Table 9), lower rates of imposition, or higher waiver rates, of FVS were consistently noted for female offenders than their male counter-parts in all regions; however, differences were determined to not be statistically significant.

Table 9: Gender Differences: Surcharge Imposed (after waiver decision) Compared to Maximum

New Brunswick is the only official bilingual province in Canada. All courts service all clients in the language of their choice. The northern region of the province is predominantly French, while the lower mid-region is English speaking. Possible disparities in the imposition/waiver rate based on the language of the client and their locale were examined. There were no statistically significant differences between French and English speaking offenders and the average amount of surcharge imposed per conviction. The percentage of FVS imposed of the possible maximum was almost identical for French speaking (33.9%) and English speaking (33.1%) offenders (Table 10).

Table 10: Language Differences: Surcharge Imposed (after waiver decision) Compared to Maximum

Finally, the last aspect of the imposition process that was examined is the absolute amount of FVS being imposed (Table 11).

Table 11: FVS Amount: Surcharge Imposed (after waiver decision) Compared to Maximum

In Table 12, the question, “Are those offenders who are being convicted for more than one offence per case paying more surcharge, compared to offenders who are being sentenced for a single conviction?” was addressed. Cases reporting convictions for a single offence consistently have the highest rates of imposition (ranging from 42.6% to 64.5%) or the lowest rates of waiver (ranging from 47.4% to 34.5%). A clean, linear trend is noted where as more convictions per case are reported, the imposition rate decreases. An identical trend is noted in the last column of Table 12 as the number of convictions per case increases, the average surcharge amount imposed decreases. Again, this is a counter-intuitive trend that one would not anticipate based on the philosophy of the victim surcharge regime. Those offenders with several convictions per case are consistently having the victim surcharge waived.

Table 12: Convictions Per Case: Surcharge Imposed (after waiver decision) Compared to Maximum

3.1.2. Collection Rates of the FVS

We now turn our attention to the collection process of the FVS in New Brunswick. There are two questions that will be addressed in this section: 1) What is the rate of collection compared to the possible maximum surcharge amounts that could have been imposed? and, 2) What is the rate of collection of the imposed FVS?

Data displayed in Table 1 showed the collection of the total possible surcharge that could have been imposed hovered at 28%; when only those cases that had a FVS imposed were examined, however, the collection rate jumped to an average of 82.7%, ranging from 79.9% to 85.2% in the various regions. Specifics surrounding the collection process are now examined.

The collection process was first examined based on offence type. There were three noteworthy findings. First, linear trends noted in the imposition rate were not noted in the collection rate of those FVS that were imposed. That is, DUIs receive the highest rate of imposition, but their collection rate is similar to that of other offences. This addresses the possibility that although the surcharge is being imposed on certain crimes at high rates perhaps their actual collection rate is low; such was not found to be the case. The second finding in Table 13 is that highest FVS revenue is coming directly from DUI and drug convictions as noted in the Total Surcharge Collected Column and these two offences are also generating the highest average collection rates per conviction. This is noteworthy as neither of these crimes is typically associated with identification of a victim. The general consistency of collection rates across all 6 regions is striking. For instance, there is no particular offence category that has a substantially different collection rate of imposed surcharge across different regions. Finally, it is noteworthy the violent offence category consistently generated one of the lowest amounts of FVS revenue, ranging from $15,407 to $53,667 over the five year period. The collection rate, however, remained high on the imposed FVS on violent offences at 84.7%. This finding may challenge the assumption held by many judges that offenders receiving custodial sentences would be unable to pay. This assumption, without further evidence, may be resulting in a waiver of the surcharge in the majority of these cases.

Table 13: Nature of Offence: Surcharge Collected Compared to Maximum

Examination of the rates of collection based on gender and language confirmed there were no significant trends to report (Tables 14 and 15).

Table 14: Gender Differences: Surcharge Collected Compared to Maximum

In Table 15, the data reveals no marked differences in surcharge revenues being collected from Francophones (84.7%)  versus Anglophones ( 81.2%) in New Brunswick.

Table 15: Language Differences: Surcharge Collected Compared to Maximum

In Table 16, FVS collection was compared between cases where a victim was identified and those where no victim was identified in the court records. As with the imposition process, those cases where no victim was identified generated more collected surcharge per convicted case, ranging from $21.02 to $34.84 with an average of $26.95. This is compared to those convictions where victims were involved, generating revenues from $8.90 to $17.85 with an average of $14.06. These collection totals are a natural result of the low imposition/high waiver rate for those convicted cases where a victim was identified. There was no substantial difference noted in the collection rates of those cases that had the FVS imposed if there was a victim identified (81.1%) or not (83.1%).

Table 16: Victim Identification: Surcharge Collected Compared to Maximum

The data presented in Table 17 provides information on the collection rate depending on the offender’s disposition, e.g., fine, custody. It was expected that those sentenced to serve time would have extremely low collection (payment) rates. The collection rate is substantially lower on average for custody orders (52.8%) compared to fine dispositions (85.3%); in some regions, however, the collection rate for custody orders was as high as 75.2%.

Data in Table 19 outlines the excellent administrative process involving the details of applying payments to court costs first, FVS second and finally, fines, as dictated by the law. As noted in column 4, it is rare that the FVS only is paid and not the fine.

Table 19: Payment of Fine and Surcharge When Both Fine and Surcharge Imposed (after waiver decision)

[2] The phrase “after waiver decision” is included in the titles of the tables to emphasize that the decision to waive the federal victim surcharge is an active one, rather than the default result.