The Federal Victim Surcharge - The 2013 Amendments and their Implementation in Nine Jurisdictions
1. Introduction
1.1 Background
A federal victim surcharge is an additional penalty automatically imposed on offenders at the time of sentencing. There is a federal and in most jurisdictions, a provincial/territorial surcharge that is collected and retained by the provincial and territorial governments, and used to help fund programs, services and assistance to victims of crime within the provinces and territories.
The federal victim surcharge was first enacted in 1988 and proclaimed in 1989; it was called the "victim fine surcharge
". Further amendments were enacted in 2000 to fix the amount and make it mandatory, although the judge had the discretion to waive the surcharge for reasons of "undue hardship
." At this time, the surcharge became known simply as the "federal victim surcharge
". Prior to Bill C-37, the judge was required to order the surcharge, which was 15% of any fine imposed on the offender, or if no fine was imposed, $50 in the case of an offence punishable by summary conviction and $100 in the case of an offence punishable by indictment. An increased surcharge, at the discretion of the judge, in appropriate circumstances could also be imposed and the fine option program could not be used to discharge a surcharge. The judge could waive the surcharge for reasons of undue hardship.
Research was undertaken by the Department in the early 90s to determine how the federal victim surcharge (FVS) was working. The studies showed that the federal victim surcharge was being waived the majority of the time and collection of the surcharge when imposed was not high.
A recommendation to increase the amount of the federal victim surcharge in the mid-2000s resulted in additional research being done. The Department conducted studies in three jurisdictions: New Brunswick, the Northwest Territories and Saskatchewan. Results were quite similar to the previous research, even with the 2000 amendments to the Criminal Code which made the imposition mandatory. In all three jurisdictions, the federal victim surcharge was waived in the majority of cases, particularly in cases where there were custodial sentences.
Bill C-37, An Act to amend the Criminal Code (or the Increasing Offenders' Accountability for Victims Act), was introduced in April 2012 and amendments to the surcharge provisions in the Criminal Code came into force on October 24, 2013. These amendments included:
- section 737(5) of the Criminal Code (the Code) to eliminate judicial discretion to waive the surcharge in cases of "undue hardship";
- section 737(2) of the Code to increase the federal victim surcharge from 15% to 30% of a fine imposed by the court;
- section 737(2) of the Code to increase the federal victim surcharge from $50 to $100 for offences punishable by summary conviction if no fine is imposed by the court; and
- section 737(2) of the Code to increase the federal victim surcharge from $100 to $200 for offences punishable by indictment if no fine is imposed by the court.
Bill C-37 also amended the Criminal Code to provide that offenders who are unable to pay the surcharge may be able to participate in a provincial fine option program where one exists. Not all the provinces and territories offer the fine option program under section 736 of the Code.
There is a need to understand how the federal victim surcharge regime is working since the former C-37 amendments came into force and effect in October 2013.
1.2 Purpose
The purpose of the present study is to understand:
- What is the standard process followed by court staff/community corrections in order to a) collect? and b) enforce the federal victim surcharge when an offender is unable to pay?; and
- What has been the impact of Bill C-37 amendments at the local level?
These issues were formulated into ten primary research questions:
- 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?
- Is this process documented in a policy, manual or guidelines? Y/N
- Does your jurisdiction offer a Fine Option Program? Y/N
- Is the Fine Option Program available to the federal victim surcharge? Y/N
- When did it become available?
- 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?
- 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?
- Based on your records, since November 2013 how many offenders' cases, where their federal victim surcharge has not been paid, are referred to collection agencies? What proportion of total offenders does this group represent?
- 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.
- Were any of these measures added after former Bill C-37 came into force? If so, which ones?
- 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.
"- Has a time frame been established by the Lieutenant Governor in Council of your jurisdiction? Y/N If so, what is the time frame?
- How was this time frame communicated? (e.g., memo to staff, issuance of guidelines, etc.)
- From your records, what percentage of the federal victim surcharge is being collected within a "reasonable time" as defined by your jurisdiction?
- Based on your experience, what problems have you had with the enforcement of/collection of the federal victim surcharge?
- 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:
- resources in courts administration and community corrections in your jurisdiction,
- revenues to fund victim services, and
- ability of offenders to complete their sentences?
2. Methodology
All 13 jurisdictions were invited to participate in this study. Ultimately, nine jurisdictions participated: Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and the Yukon. Additionally, federal officials from the Parole Board of Canada participated. Phone interviews were conducted to collect information pertaining to the collection and enforcement process of the federal victim surcharge in various jurisdictions post former Bill C-37, which came into force on October 24, 2013. Possible key informants were identified by Department of Justice and contact information was given to the contractor. Letters of introduction and interview protocols (Appendix A) were forwarded to these initial points of contact in the hopes of identifying knowledgeable personnel willing to participate in the study. Initial contact was made either by phone or email.
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 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.
A single interview protocol was used to bolster convergent validity of the qualitative data collected. In cases where informants did not feel they had an opinion or information regarding the question asked, they were instructed to indicate that lack of insight and the interviewer moved on to the next question. Interviews ranged in time from 15 to 75 minutes. Information collected during the interview was occasionally (n=4) supplemented with written notes provided by key informants forwarded in emails after the interviews.
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