The Federal Victim Surcharge - The 2013 Amendments and their Implementation in Nine Jurisdictions

Executive Summary

In October 2013, former Bill C-37, Increasing Offenders' Accountability for Victims Act (S.C. 2013 c.11), which doubled the amount of the federal victim surcharge (FVS) and removed judicial discretion of a waiver, came into effect. The Research and Statistics Division, Department of Justice Canada, was interested in better understanding how the 2013 amendments to the Criminal Code that were made to the FVS provisions (Bill C-37) have been working in terms of collection and enforcement in several jurisdictions since its coming into force on October 24, 2013. The results of this study will be used to identify the various impacts of the FVS 2013 amendments.

The ten primary research questions were:

    1. What is the standard process in your jurisdiction followed by court staff/community corrections in order to collect the federal victim surcharge where the offender is unable to pay?
    2. Is this process documented in a policy, manual or guidelines? Y/N
  2. Does your jurisdiction offer a Fine Option Program? Y/N
    1. Is the Fine Option Program available to the federal victim surcharge? Y/N
    2. When did it become available?
  4. Based on your records, since November 2013, how many offenders cannot pay their federal victim surcharge and are being referred to the Fine Option Program? What proportion of total offenders does this group represent?
  5. Since November 2013, where offenders cannot pay their federal victim surcharge and there is no Fine Option Program, or it is not available in these cases, how is your jurisdiction enforcing these orders?
  6. Based on your records, since November 2013 how many offenders' cases, in which their federal victim surcharge has not been paid, are referred to collection agencies? What proportion of total offenders does this group represent?
    1. Since November 2013, what other measures are used to enforce payment of the federal victim surcharge in your jurisdiction? For example, income tax refund hold back, denial of renewal of driver's license, denial of renewal of other permits/licenses, etc.
    2. Were any of these measures added after former Bill C-37 came into force? If so, which ones?
  8. Subsection 737(4) of the Criminal Code notes that the jurisdiction is to establish the time in which a surcharge must be paid and, "If no time has been so established, the surcharge is payable within a reasonable time after its imposition."
    1. Has a time frame been established by the Lieutenant Governor in Council of your jurisdiction? Y/N If so, what is the time frame?
    2. How was this time frame communicated? (e.g., memo to staff, issuance of guidelines, etc.)
    3. From your records, what percentage of the federal victim surcharge is being collected within a "reasonable time" as defined by your jurisdiction?
  9. Based on your experience, what problems have you had with the enforcement of/collection of the federal victim surcharge?
  10. Based on your experience in your jurisdiction, what has been the impact of the mandatory surcharge (e.g., since former Bill C-37 came into force) on:
    1. resources in courts administration and community corrections in your jurisdiction,
    2. revenues to fund victim services, and
    3. ability of offenders to complete their sentences?

Methodology

The methodology used in this study was predominantly qualitative in nature, complemented with a few broad statistics on the collection of the federal victim surcharge culled from various Justice Information Systems (JIS) across the country. Information on the present collection and enforcement process of the federal victim surcharge was collected through phone interviews and supplemented with written responses from 40 key informants in nine jurisdictions including Alberta, Newfoundland and Labrador, New Brunswick, Prince Edward Island, Nova Scotia, Ontario, Manitoba, Saskatchewan and Yukon; and two key informants from the Parole Board of Canada.

Key Informants

A total of 40 key informants from nine jurisdictions working in the Canadian criminal justice system participated in the study, as well as two key informants from the Parole Board of Canada. Four jurisdictions responded only in writing; while two jurisdictions' contributions were the culmination of one individual's efforts in pulling together relevant information from colleagues in various departments within their jurisdiction and relaying that information during a phone interview. The remaining three jurisdictions contributed information primarily through group/conference calls with two or more individuals participating during the same interview/call. Both individuals from the Parole Board of Canada were interviewed by phone.

Results

Fine Option Program

The Fine Option Program (Table 1) is available in all jurisdictions contacted except Newfoundland and Labrador, and Ontario, however, it is only available for federal victim surcharge satisfaction in these four jurisdictions: Alberta, Saskatchewan, Manitoba and the Yukon. Manitoba informants estimated that very few offenders, perhaps less than 5%, use this program to satisfy their federal victim surcharge. The other jurisdictions had no estimate of how many offenders use their Fine Option Program to satisfy the federal victim surcharge.

Table 1: Fine Option Program Availability
Province Fine Option Program Fine Option
for FVS		 Fine Option Available
Alberta Yes YesFootnote * 2014
Saskatchewan Yes Yes 2014
Manitoba Yes Yes 2013
Ontario No - -
New Brunswick Yes No -
Newfoundland and Labrador No - -
Nova Scotia Yes No -
Prince Edward Island Yes No -
Yukon Yes Yes 2013

Interestingly, it was Nova Scotia, which does not use the Fine Option Program to satisfy the federal victim surcharge, that had the most to say about the effectiveness of their approach. They felt that not using the Fine Option Program had significantly and positively impacted the payment of the federal victim surcharge in their jurisdiction. From February 1990 until June of 2000 the Fine Option Program was available for the satisfaction of the federal victim surcharge; however, it was noted more times than not that the offender would work off the fine portion of their sentence and leave the surcharge unpaid. Amendments made in June of 2000 now require offenders to pay federal victim surcharge and court costs prior to being admitted into the Fine Option Program. In many cases where large fines need to be satisfied, this has provided a strong incentive for offenders to pay the federal victim surcharge in order to gain access to the Fine Option Program. Although there was no data to support this assertion, informants all agreed this change in policy has had an overall net positive effect on collection of federal victim surcharge in this jurisdiction.

Collection and Enforcement Methods

Various collection and enforcement methods (Table 2) were noted across all jurisdictions. Five jurisdictions use an internal government collection agency, whereas only two jurisdictions use a third party for collection services. Motor vehicle sanctions are consistently used by four jurisdictions, while the CRA Federal Refund Set-off Program is utilized by four jurisdictions. Only two jurisdictions engage default hearings/time served as their primary enforcement method.

Table 2: Collection/Enforcement Methods in Various Jurisdictions
Province Internal Collection External Collection Driver's/Vehicle Licence Renewals Default Hearing/Serve Time CRA Federal Refund Set-off Program
Alberta Yes No Yes Yes Yes
Saskatchewan Yes No No NoFootnote 2 Yes
Manitoba No Yes NoFootnote 1 NoFootnote 2 No
Ontario No Yes No No NoFootnote 4
New Brunswick No No No Yes No
Newfoundland and Labrador Yes No Yes No YesFootnote 3
Nova Scotia Yes No Yes No Yes
Prince Edward Island YesFootnote 5 No Yes No No
Yukon No No No No No

Time Frames

Subsection 737(4) of the Criminal Code notes that each jurisdiction is to establish the time in which a surcharge must be paid and "If no time has been so established, the surcharge is payable within a reasonable time after its imposition". A time frame to satisfy the federal victim surcharge has been established by the Lieutenant Governor in Council in only three jurisdictions (Table 3); however, interviewees in all other jurisdictions stated that a time frame to satisfy the federal victim surcharge is consistently, clearly and directly conveyed to the offender at the time of sentencing.

Table 3: Time Frame Established by Order in Council in Various Jurisdictions
Province Yes/No Established Time Frame Used Extensions Available?
Alberta Yes 1999 As determined by legislation; ranging from 2 months-2years Yes
Saskatchewan Yes 1999 30 days Yes
Manitoba No - Typically 30 days; unless otherwise stated by judge at time of sentencing Yes
Ontario Yes 1999 30 days for summary conviction; 60 days for an indictable offence Yes
New Brunswick No - Default hearing date set at time of sentencing; judge confers with offender on time required Yes
Newfoundland and Labrador No - 30 days (when no fine imposed)
Fine imposed; judge confers with offender on time required		 Yes
Nova Scotia No - Judge confers with offender on time required; date set at time of sentencing Yes
Prince Edward Island No - Assigned by judge at time of sentencing Yes
Yukon No - Assigned by judge at time of sentencing Yes

Impacts

There were very few impacts identified (Table 4) other than the "obvious burden being placed on offenders who clearly are unable to pay, e.g., homeless, unemployed, persons with addictions" that was articulated by several of the key informants. Additionally, substantial increases in paperwork for a few courts and minimal increases in another two courts were noted as impacts. Eight of the nine jurisdictions confirmed there have been increases in revenues generated for Victim Services (details Appendix B).

Table 4: Impacts due to Changes in the Federal Victim Surcharge
Province Administration Victim Services Fund Offender's Sentence Completion
Alberta No Increase No
Saskatchewan Minimal Paperwork Increase Increase Unknown
Manitoba Substantial Paperwork Increase
Outdated JIS		 Increase No
Ontario Minimal Paperwork Increase Increase Unknown
New Brunswick Substantial Paperwork Increase
Outdated JIS		 Increase No
Newfoundland and Labrador No Increase Unknown
Nova Scotia No Increase No
Prince Edward Island No Decrease Yes
Yukon No Increase Yes

During interviews with key informants there were several concerns raised that were not explicit in the interview protocol, but were related to the questions asked. Various jurisdictions noted issues relating to:

Summary

The objective of this research was to develop a better understanding of the current status of collection and enforcement of the federal victim surcharge in cases where the offender is not compliant making their payment, as well as identify challenges that are present in the current process.

There is marked variability across jurisdictions on the processes used for the collection and enforcement of unpaid federal victim surcharge. Almost half of the jurisdictions questioned use internal collection agencies (n=5), denial of motor vehicle license renewals (n=4), and CRA's Federal Refund Set-off Program (n=4); fewer jurisdictions use external third party collection agencies (n=2) and default hearings with subsequent time served (n=2) as enforcement mechanisms. Only one province uses all four mechanisms involving internal collections, denial of licence renewals, default hearings and the CRA's Federal Refund Set-off Program. Three jurisdictions use only one strategy. Finally, there is one jurisdiction that does not use any special strategies for collecting unpaid federal victim surcharge; the unpaid surcharge simply "sits on the books". Unfortunately, due to time constraints and archaic justice information systems there were not any data available that would illuminate how these enforcement techniques are related to local collection rates of the federal victim surcharge.

Further, it was found that the Fine Option Program is available for federal victim surcharge satisfaction in four jurisdictions; however, the rate this program is being used for that purpose was not available from any key informant. It was also noted that a time frame to satisfy the federal victim surcharge has been established by the Lieutenant Governor in Council in only three jurisdictions; however, every other jurisdiction establishes clear time frames for payment of the FVS at the time of individual sentencing.

Interviewees from the majority of jurisdictions (n=6) felt there has been minimal impact in terms of court services administration; as well, it was noted that there had been a consistent increase in funds available for Victim Services (n=8), and there was little comment on the impact of the FVS on the offenders' ability to complete their sentences. There was a variety of concerns raised during the interviews, the most notable involving outdated justice information systems (n=3) and creative sentencing practices being employed by the judiciary (n=8) to work around the mandatory imposition of the federal victim surcharge.

What was particularly striking about the interview process in this project was how many personnel and departments had to be consulted to garner the answers to the ten questions posed in the interview protocol. There was not a single jurisdiction where one individual, through no fault of their own, was aware of the complete process in cases where the federal victim surcharge is not paid in a timely manner. That being said, this is not a case where the federal victim surcharge is slipping through the proverbial cracks of the collection/enforcement process. Each jurisdiction does have a clear plan for recovery of these funds; however, the knowledge of this process is very compartmentalized, with each department only aware of their piece of the collection/enforcement puzzle.

As the Department of Justice Canada moves forward in its efforts to understand how the federal victim surcharge regime has been evolving across the country, most notable is the high degree of variation among jurisdictions to approaching the collection and enforcement issues around the federal victim surcharge.