Federal Victim Surcharge in New Brunswick: An Operational Review

4. Conclusions

The objective of this research was to develop a better understanding of the current status of the federal victim surcharge regime in the province of New Brunswick, to identify challenges that are present in the current process, and to generate possible solutions to circumvent impediments in maximizing the effectiveness of this process. Thus, the question posed at the beginning of this report, “Why has the anticipated revenue to be generated in NB from the 1999 amendments to the Criminal Code provisions related to surcharge not been realized?” has been explored. Conclusions drawn are as follows:

  1. There is a high level of awareness surrounding all aspects of the Federal Victim Surcharge (FVS).
  2. The average rates of waiver (66.2%), 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 convictions (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 at the same level as before the amendments.