Federal Victim Surcharge in New Brunswick: An Operational Review

3. Results (cont'd)

3.2. Qualitative Analysis: Interviews with Key Informants (cont'd)

3.2.4. Mandatory Imposition

Informants were further asked about their views on making changes to the federal victim surcharge process and whether the federal victim surcharge should be mandatory or “built-in”. One stakeholder made the suggestion to “…remove the federal victim surcharge from the sentencing process and simply make it a mandatory surcharge as is the provincial victim surcharge that is applied automatically by the Court Registry upon conviction rather than by the judge…”. This would require amendments to the Criminal Code and, if passed, would remove the federal victim surcharge regime from the sentencing process.

Strong opposition was voiced by all judges interviewed (n=6) and some stakeholders (n=3) at the prospect of the federal victim surcharge becoming “built-in” as is the provincial victim surcharge. Judges expressed their appreciation of the freedom that the current wording of the Criminal Code affords them to waive the federal victim surcharge in cases where if it were applied it would cause undue hardship. They reiterated the necessity for discretion and flexibility in applying the federal victim surcharge, citing that every rule has an exception and their expertise is required to negotiate those instances. In short, as one judge stated, “It [the federal victim surcharge] should not be mandatory….judges should have a discretionary authority [to waive the surcharge]”. Thus, when judges are exercising this discretion – what are the factors they are considering before waiving the federal victim surcharge? This was explored in the next portion of the interviews.

3.2.5. Waiver

When considering a waiver, there exists real variation in judges’ perceptions about their role and discretionary power regarding the federal victim surcharge. For example, one judge stated …“[It is not my role to impose the federal victim surcharge]...the law imposes an automatic surcharge unless dispensed…therefore it is not my practice to impose a surcharge in open court as this is an administrative measure.” In other words, the only role the judge plays in the federal victim surcharge process is to waive the surcharge, while the court personnel are responsible for the paper work. It was noted several times during the interviews by various stakeholders that at the time of the amendments in 1999, when the federal victim surcharge became automatic, court personnel strongly objected to the changes stating they “…felt unsafe ‘imposing’ the surcharge and resented being the person to inform the offender they had to pay more money on top of their fine…”

Some judges (n=5) reported that they 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 it. The offender’s “inability to pay” is often considered in conjunction with non-fine dispositions. This is because according to the judges, when an offender is sentenced to a lengthy jail term the inability to pay the federal victim surcharge is viewed as inevitable.

According to one judge the paradox of the imposition process is:

“…that the worse the offender, the bigger the fine, the heavier the fine, the more it is perceived as too great a burden so then the fine (and federal victim surcharge) are waived … On the other hand, those that are not fined and are headed to custody are viewed as having no means to pay the fine so the federal victim surcharge is again not imposed – who is left? Typically those with smaller fine amounts – those who have imposed the least amount of damage on victims…”

3.2.6. Undue Hardship

Criminal Code section 737.(5) states that:

(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).

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)).

At present, it appears that mere assertions of an inability to pay by offenders or perceptions by judges that the offender cannot pay are sufficient to prove undue hardship in the Provincial Court of New Brunswick. The ability to pay the federal victim surcharge is never raised by the defence as a separate issue from the offender’s general ability to pay a fine. Questions from the judges such as, “Are you working?” or “Can you pay that fine?” or “Are you going to the Fine Option Program?” suffice as evidence for undue hardship. 

Information obtained from the Pre-Sentence Report is another common source of information guiding judges in these decisions.  During the interviews a judge commented that, “No formal evidence is heard – it is determined usually by the accused’s financial capacity as presented in a Pre-Sentence Report…with the consent of the parties.”  Judges cited examples of factors they consider for waiving the federal victim surcharge:

One judge explained the process of determining if the surcharge should be applied as follows “…when I am deciding on the fine amount I always am considering it in terms of the total monetary penalty…..for example if I think they can pay $500 then I work backwards and apply a lesser fine so the total including the federal victim surcharge will not exceed the $500…”

Not one single interviewee, including the defence counsel, had any recollection of the defence making application to establish “undue hardship” for their client. During the file review, there was no documentation of application by any defence counsel for consideration of undue hardship. Given that s.737(5) stipulates that the offender must establish to the satisfaction of the court that undue hardship would result, there would appear to be a disconnect between the procedure in the legislation and what is occurring in practice.

3.2.7. Documentation of the Federal Victim Surcharge

A survey was conducted by the Director of Program Support Services (DOJ-NB) on behalf of the researcher regarding individual court location practices involving endorsements on Information Sheets in all 14 Provincial Court locations, which included eight court supervisors. Results from this survey reported significant variations in documenting federal victim surcharge practices.

Sixty-four percent of the Provincial Court locations (9 of 14) reported that when the federal victim surcharge is waived it is consistently and automatically documented by the court stenographer on the back of the Information Sheet.  Two more court locations reported consistent practices of court staff asking the judge to clarify whether the federal victim surcharge should or should not be applied and then documenting the waiver accordingly on the back of the Information Sheet.  Two court locations indicated inconsistent reporting regarding waiver or application on the Information Sheet.  “It is generally noted, or 95% of the time we document the waiving of the federal victim surcharge on the back of the Information Sheets.”  Only one court location documented in the opposite manner, noting the imposition of the federal victim surcharge on the back of the Information Sheet, rather than it being waived. 

Information collected during the survey of existing practices regarding endorsing Information Sheets indicated that several unique practices have evolved in some court locations. One such understanding that has evolved is a blanket non-imposition of the federal victim surcharge. That is, there is an understanding among some judges and court personnel that if the federal victim surcharge is not actively applied by the presiding judge then the court stenographer is to document a waiver of the federal victim surcharge. Another unique practice is that at the time of sentencing the judge will offer the offender the choice to serve jail time rather than imposing the federal victim surcharge. Another judge was identified as imposing the condition of donating an indicated sum to a charity of the offender’s choice rather than impose the federal victim surcharge. These practices appear to be the rare exception to the rule.

3.2.8. Suggestions to Reduce Waiver Rates

Finally, stakeholders were asked to offer any suggestions they considered a viable means to reduce waiver rates by improving the FVS process. All suggestions are recorded unedited. The suggestions that are already implemented have been included in the section to serve as indicators of low awareness of the established initiatives to improve the federal victim surcharge regime. These suggestions were not evaluated as to the plausibility of implementation. Interviewees were asked if they knew of any potential limitations to their suggestion and these limitations are noted. The suggestions are presented in no particular order:

  1. Documentation by Court Personnel – forced field in data entry phase on whether the surcharge was imposed (this would not reduce waiver rates, but would clearly indicate, on the Justice Information System, when the surcharge was waived).
  2. Provision of a surcharge grid to court clerks, stenographers, and/or judges.
  3. Collection of the surcharge right off the top of the imposed fine.
  4. Make the federal victim surcharge mandatory; as is the case with provincial fines e.g., speeding tickets, the provincial victim surcharge is automaticallyprocessed as part of the imposed fine.
  5. Court stenographers should remind judges.
  6. Creation of posters to remind personnel/offenders the federal victim surcharge is the law[3].
  7. Abandon federal victim surcharge for court user fees as in other provinces.
  8. Development of forms with a statement regarding the purpose of the federal victim surcharge that the judges would give to an offender with the amount and explanation of why and where the money goes. This would help “to connect the dots” for offenders as a statement by the judge reminding the offender of the impact on the victims and also as a reminder of their requirement to pay the federal victim surcharge.

3.2.9. Collection / Enforcement

At present the only enforcement strategy in place in New Brunswick is to serve default time. That is, if the offender does not pay her/his surcharge and they do not show up for their default hearing to explain why the payment has not been satisfied, a warrant for their committal is issued. Many (n=6) of the 13 stakeholders commented that:

There was an overwhelming consensus (n=13, 100%) by all stakeholders that the current consequence of offenders serving time for non-payment of the surcharge was counter-productive. Most interviewees pointed out that if it costs the government approximately $100 to house the offender overnight for non-payment of a $50 victim surcharge. In fact, the sentence of one day results in offenders being admitted and released serving no penalty. Opinions on the default formula provided in the Criminal Code included:

3.2.10. Suggestions to Improve Federal Victim Surcharge Collection

All key informants believed that collection of the federal victim surcharge should be more rigorous. Informants were asked what other options could be considered for collection and what if any impediments would need to be overcome jurisdictionally to implement options other than default time as a penalty. These suggestions are presented as proposed by the various key informants. The potential viability of these options was not explored beyond those limitations the various key informants offered.

  1. Work off a federal victim surcharge just as fines are worked off in the Fine Option Program[4] (thereby potentially improving satisfaction of the surcharge, but this would not effect the collection of monies).
  2. Approach the Department of Public Safety to explore the feasibility of using Motor Vehicle Registration renewal and/or driver’s license suspension as a mechanism for collection if the surcharge is not satisfied. This particular suggestion generated a significant amount of feedback from respondents who, while seeing the many benefits of this recommendation, also noted some of the challenges:
    • offenders may drive without them and insurance rates may be impacted;
    • may have an economic and lifestyle impact on whole family;
    • renewal of a driver’s license is only required every four years; and,
    • there would be a cost to administer the program.
  3. Civil judgments may be filed, but this may not be cost effective in time and money.
  4. Make offender aware they can pay the federal victim surcharge in more “payable” increments.
  5. Collection agencies could collect surcharges that are not satisfied after a specified time. This requires:
    • strict scripts to be followed; and,
    • the loss of a percentage of the collected funds to the collection agency.
  6. Submit a record of the unpaid federal victim surcharge to credit reporting bureaus.
  7. Provide incentives to pay in a timely manner by increasing the amount after a designated lapsed time (six months) or offer a reduced amount if paid immediately (24 hours) or before leaving court.
  8. Garner social assistance cheques, unemployment benefits.
  9. Request that probation officers monitor/collect monies.