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

3. Results

Results are presented by jurisdiction.

3.1 The Alberta Experience

There were a total of nine participants from the Alberta Justice System. These key informants came from five divisions within one department.

The primary key informants (n=9) included:

3.1.1 Standard Collection Process

In Alberta, unpaid federal victim surcharges are given to the Fines Enforcement Program after the time period given to pay has expired. This is clearly documented in internal procedure manuals. In a minority of cases, offenders whom are unable to pay their surcharge choose to serve the days in default instead of paying the fine amount.

3.1.1.1 Fine Option Program

The Fine Option Program (FOP) has been available in Alberta for federal victim surcharges since 2014. FOP policy was updated in October 2013 to reflect the changes regarding working off federal victim surcharges; however, amendments to the Fine Option Order are currently being discussed to ensure clarity concerning their inclusion in the program.

At present, the program allows offenders that are sentenced to pay the federal victim surcharge to participate in the Fine Option Program only if non-payment of those fines will result in a default period of custody. It allows offenders to satisfy the financial terms of their fines through community work service. They can perform this service in lieu of, or as a supplement to, the cash payment of the federal victim surcharge. The compensation rate is set at minimum wage standards. This monetary amount is used to compute the number of hours required to meet the court financial requirements. When enough credits are earned, a voucher is issued to the clerk of the court indicating that the requirements of the fine have been satisfied.

Exact numbers of how many offenders use the Fine Option Program to satisfy their federal victim surcharge are not available as data would need to be pulled from the Justice Offender Information Network (JOIN) which involves request forms and weeks of waiting to receive the information/data, a time frame that could not be accommodated in this short project. Although the Fine Option Program is available, the program was not designed for the significant increase in offenders that may occur due to the mandatory nature of the federal victim surcharge.

3.1.2 Standard Enforcement Process

Overdue surcharge payments are handled by the Fines Enforcement Program, a division of Alberta Justice and Solicitor General that works in conjunction with the Alberta Courts. Other standard enforcement strategies such as withholding motor vehicle license renewals and the CRA federal off-set program are utilized in this jurisdiction. Default hearings and subsequent time served are also used to

3.1.2.1 Reasonable Time

Subsection 737(4) of the Criminal Code notes that the jurisdiction is to establish the time in which a surcharge must be paid. This time frame was established by the Lieutenant Governor in Council of Alberta's jurisdiction on December 15, 1999 by Order in Council 523/1999.

It states in this Order,

  1. "offence" means an offence referred to in section 737 of the Criminal Code (Canada);
  2. "federal victim surcharge" means a victim surcharge imposed under section 737 of the Criminal Code (Canada).

2   If a federal victim surcharge is imposed on a person convicted of an offence or discharged under section 730 of the Criminal Code (Canada) of an offence and a fine is not imposed in respect of that offence, that federal victim surcharge is payable by that person within the following time periods:

  1. where a non-custodial sentence is imposed, within 2 months from the date of the sentencing of that person;
  2. where a custodial sentence is imposed, within the sooner of
    1. 2 months from the expiry date of the warrant of committal issued in respect of that person, or
    2. 2 years from the date of the sentencing of that person;
  3. where a conditional or intermittent sentence is imposed, within 2 months from the date of the sentencing of that person.

3   Notwithstanding section 2, if:

  1. an information sets out more than one offence,
  2. a person is convicted of more than one of those offences and a fine is imposed on that person at the time of sentencing in respect of any one or more but not all of those offences for which the person is convicted, and
  3. a federal victim surcharge is imposed on that person in respect of one or more of the offences for which the person is convicted but for which a fine was not imposed, that federal victim surcharge is payable by that person,
  4. where the person is convicted of more than one of those offences but a fine is imposed in respect of only one of the offences, on or before the date on which that fine is payable, or
  5. where the person is convicted of more than one of those offences, a fine is imposed in respect of more than one but not all of those offences and those fines are payable on different dates, on or before the last of those dates.

This established time frame has been the subject of confusion since its inception and it is going to be revised in the near future to further clarify the time frames established in this legislation.

3.1.3 Impacts Due to Changes in the FVS

When asked what the impacts have been on the federal victim surcharge regime in Alberta since former Bill C-37 came into force in October 2013, it was stated there have been "substantial repercussions due to the removal of judicial discretion in relation to the imposition of a mandatory federal victim surcharge for all offences that has caused a number of concerns in Alberta." The primary concern has been the number of "creative" judicial approaches to either avoid imposing the surcharge, or to impose meaningless or unenforceable conditions on its payment.

For example, some judges will simply indicate that they are waiving the surcharge, despite the fact that the amendments made it mandatory. Although this error could be appealed, it is simply not feasible from a resource perspective to pursue an appeal in all cases in which this occurs. The costs of pursuing the appeal would far outstrip the benefit of having the offender ordered to pay the surcharge. There is no record of any appeal on such grounds.

Other judges commonly will state that they are imposing the federal victim surcharge, but ordering that its payment is satisfied by the offender's appearance in court on the date of sentencing by imposing one day in default with no warrant of committal.

Still other judges will impose the federal victim surcharge, but then grant an excessively lengthy period of time to pay. For example, some offenders have been given as long as 30 years to pay the surcharge. This results in a meaningless order and completely frustrates the province's ability to collect the surcharge.

Other judges will accept counsel's submissions that a fine is an appropriate sentence, but then order that the fine imposed is inclusive of the surcharge. This has the effect of reducing the amount of the fine accordingly, which arguably affects the fitness of the sentence.

Further, it was noted by victim service providers that where "creative" judicial approaches have been used, victims have reported a lack of confidence in the judicial process. It was speculated that this negative impact on overall victim satisfaction is "likely to spread to the public at large, leading to low public confidence in the judiciary." It was further posited that this potential lack of confidence could not only "bring the proper administration of justice into question, but does nothing to assist victims."

Another concern raised related to the enforcement/collection process. Respondents stated that "impecunious offenders may find themselves in a position of simply being unable to pay the mandatory surcharge." To support this assertion, a recent study was quoted that surveyed individuals being released from the Edmonton Remand Centre indicating that 14% of these individuals did not have a place to stay or a home to go to on release; half of those individuals were released from custody with no personal funds whatsoever. This was offered as a demonstration of the limited financial means and unstable housing facing a significant percentage of offenders in this jurisdiction.

3.1.3.1 Administration

There has not been a significant increase in administrative tasks due to the increased levying of federal victim surcharges in Alberta. It was stated that manual calculations are required by court services when determining the amount of the federal victim surcharge, even though the bulk of the justice system is automated in this jurisdiction.

Further, Alberta has not experienced an increase in costs associated with litigation related to the 2013 FVS amendments. There are no reported cases in which the amendments were challenged and there are no appellate decisions addressing the changes.

3.1.3.2 Victim Services Revenues

It is interesting to note that there was a substantial decrease in FVS collected during the fiscal year when former Bill C-37 came into force. Revenues plummeted over $1 million dollars that year, dropping from $2,723,000 during 2011-12 to $1,721,000 collected in 2012-13. Similar to other jurisdictions that experienced this dramatic drop during the C-37 timeframe, there has been a steady increase in revenue noted in the past three years; however, the highest collection year for the FVS remains prior to October 2013.

Table 3.1.1 Federal Victim Surcharges Imposed and Collected for Alberta by Fiscal Year, 2010-2015
Year FVS Imposed FVS Collected
2010-11 N/A $1,439,000
2011-12 N/A $2,723,000
2012-13 N/A $1,721,000
2013-14 N/A $1,995,000
2014-15 N/A $2,188,000

It was noted by some interviewees that "although there may be an increase in revenues for victim services, the imposition of a mandatory federal victim surcharge on impecunious offenders is not effective as it does not provide revenues to fund victim services and therefore does nothing to provide for support of victims." An overall collection rate of federal victim surcharge for this jurisdiction could not be estimated.

3.1.3.3 Offenders' Sentence Completion

When the legislation came into force in October 2013, personnel in Alberta Corrections expressed significant concern with the potential impact the lack of judicial discretion would have on the Fine Option Program participants, as well as the custodial population. Although numbers were not cited, these concerns still remain, as there is a perceived strain on resources and bed availability due to the inability of offenders to pay their fines and surcharges.

3.1.4 Local Recommendations

There were no specific recommendations from this jurisdiction.

3.2 The Saskatchewan Experience

There were a total of four participants from Saskatchewan. The informants all came from one department, but were from three different programs.

The primary key informants (n=4) included:

3.2.1 Standard Collection Process

Tracking the payment of the federal victim surcharges in Saskatchewan is a highly automated regime. The surcharge is immediately typed into the computer system at the time of imposition; with reminder letters automatically issued on day 30 when payment is not collected according to the legislated time frame. The outstanding federal victim surcharge amount is then automatically sent to the Canadian Revenue Agency (CRA) on day 90, where the primary enforcement mechanism of the Federal Refund Set-off Program is then activated.

3.2.1.1 Fine Option Program

The Fine Option Program has been available for federal victim surcharge satisfaction since March 2014. The informants could not speak to the number of offenders utilizing the Fine Option Program for federal victim surcharge satisfaction.

3.2.1.2 Collection Rates

Collection rates over the five year period from 2010-2015 averaged at 79%. This was the highest collection rate in the country for those jurisdictions that collection rates could be calculated.

3.2.2 Standard Enforcement Process

As stated previously, the outstanding federal victim surcharge is automatically sent to the Canadian Revenue Agency (CRA) when the time period to pay has expired, at which point the primary enforcement mechanism of the Federal Refund Set-off Program is then activated. There are no third party external collection agencies utilized in this jurisdiction for outstanding federal victim surcharge. Finally, it was noted that offenders may apply to serve time in lieu of payment of the federal victim surcharge.

3.2.2.1 Reasonable Time

A reasonable time frame, of 30 days, to satisfy the federal victim surcharge has been established by the Lieutenant Governor in Council in this jurisdiction. Informants were unable to comment on the percentage of federal victim surcharge being collected in a timely manner.

3.2.3 Impacts Due to Changes in the FVS

When asked what problems have arisen with the enforcement/collection of the federal victim surcharge it was stated that "the standard problems for any collection process; these problems are not unique to the federal victim surcharge."

3.2.3.1 Administration

It was felt that there has been a minimal administrative impact e.g., higher number of phone calls requesting extensions, due to the mandatory imposition of the federal victim surcharge.

3.2.3.2 Victim Services Revenues

There has been a dramatic increase in the dollar amount of federal victim surcharge both imposed and collected since October 2013 in this jurisdiction. What is particularly striking is the high proportion of federal victim surcharge that been collected in the five year period, 2010-15, averaging at 79%.

Those interviewed believe this increase in collection rate is primarily due to the changes in the Criminal Code; however it was acknowledged this could be in part due to a third variable like an increase in collection efforts, population growth, etc.

Table 3.2.1: Federal Victim Surcharges Imposed and Collected for Saskatchewan by Fiscal Year, 2010-2015
Year FVS Imposed FVS Collected
2010-11 $687,041 $516,754
2011-12 $699,484 $541,794
2012-13 $731,995 $687,412
2013-14 $1,237,052 $1,124,861
2014-15 $3,873,651 $2,838,517
3.2.3.3 Offenders' Sentence Completion

The informants did not feel they could comment on this question.

3.2.4 Local Recommendations

There were no recommendations from this jurisdiction.

3.3 The Manitoba Experience

There were a total of four participants from the Manitoba Justice System representing the Courts Division (n=3) and the Fine Option Program (n=1).

The primary key informants (n=4) included:

3.3.1 Standard Collection Process

In Manitoba, at the time of sentencing the judge directs the offender to pay their surcharge or sign up for the Fine Option Program. Information respecting the Fine Option Program is included on the Fine Order provided to offenders at the time of sentencing. The standard collection process for offenders who do not pay their surcharge is not documented in any official capacity. There are no guidelines, written policies or manuals outlining this process. When the Fine Option Program became available to offenders to satisfy their federal victim surcharge, an email was sent to the appropriate departments to inform everyone of this development.

3.3.1.1 Fine Option Program

In Manitoba, there is a Fine Option Program and it is available to offenders to satisfy the FVS. Offenders must request this option; they are not automatically diverted there. Again, offenders volunteer to participate in this program. It was estimated that very few offenders utilize the Fine Option Program in this jurisdiction, perhaps less than 5% of those with a federal victim surcharge to satisfy.

The Fine Option Program has been available for the surcharge payment since 2013. It was described as a small program with three personnel - a clerk, a manager and a community corrections worker - to run the program for the entire province. In rural areas, Probation Officers are tasked with Community Corrections Coordinator responsibilities to provide oversight where the Fine Option Program is available. A short interview is conducted upon intake to the Fine Option Program in order to ensure any special conditions that would be required are fulfilled, e.g., high risk offenders requiring more supervision/avoid certain placements. In larger urban centers, with the support of other community services, e.g. Salvation Army Correctional Service, the program runs smoothly with strong supervision and ample work opportunities; however, the corollary also holds true in that many rural areas there are few work opportunities and little to no supervision available (e.g. in First Nation communities). If participants in the Fine Option Program fail to complete their work term, the court is advised of their termination in the program and the surcharge will then "sit on the books," as no warrant of committal/arrest will be issued. In order to avoid a "revolving door" in the Fine Option Program, offenders cannot return to the program to work off a specific fine/surcharge they have failed to complete within a reasonable time frame; however they are able to register for other fine commitments in the future. Reasonable time frames for completion vary depending on the work assigned and the judgment of the individual supervisor, who typically investigates the reasons why the work is not being completed. Legislation dictates there is a total 24 month time frame in which the work must be completed; however, there is an appeal process for exceptional circumstances (e.g. pregnancy). It was estimated that between January 2014 and May 2016, approximately 62% of the offenders successfully completed their fine obligations, while 38% failed to complete the number of hours required to satisfy their fine. There were no data available to substantiate this claim as the Fine Option Program has been using a paper-based administration method since the computer system died over a decade ago.

3.3.1.2 Collection Rates

The justice information system "does not easily allow for this information to be accessed", therefore, estimates for collection rates of the federal victim surcharge were not able to be calculated.

3.3.2 Standard Enforcement Process

The federal Public Prosecution Services of Canada (PPSC) enforces fine and surcharges ordered for Controlled Drugs and Substances Act offences. For other offences with penalties that include the federal victim surcharge or stand-alone federal surcharges ordered, the enforcement process is "the same as any other fine collection" in the Manitoba justice system. There was a consensus among informants that if the surcharge was not paid right away, then it could take some time before it was collected, but this could not be confirmed with data. Informants stated there are no default hearings specifically related to the surcharge. The Canada Revenue Agency Federal Refund Set-off Program is currently not being utilized in this jurisdiction. All of these mechanisms in the collection/enforcement process were in place before Bill C-37.

3.3.2.1 Reasonable Time

A reasonable time frame to satisfy the federal victim surcharge has not been established by the Lieutenant Governor in Council in this jurisdiction. Further, data was not available to speak to the question on whether the surcharge is collected in a timely manner. It was noted that this was due to the fact that the records for this would require a manual extraction, i.e., paper/pencil endeavour.

Although current data was not available for examination, it was the opinion of all four informants that most FVS are not being paid within a reasonable time.

At this point, it was mentioned that there is no standard time established to send the surcharge to a third party collection agency as it depends on many factors, and creative sentencing practices by the bench can further complicate the process. In some instances, judges assign a very low fine (e.g. $13 which includes the $10 base fine and $3 federal victim surcharge). The cost of administering these types of penalties and the cost of using a collection agency becomes economically futile.

3.3.3 Impacts Due to Changes in the FVS

The consensus among key informants is that collection of the FVS in Manitoba has many challenges.  The primary concerns rest in the manual information management system (i.e. paper-based) that is still in place to collect, track and enforce the surcharge regime.

3.3.3.1 Administration

There has been a significant increase in paperwork related to the amendments of 2013. It was estimated that the number of "fine orders have tripled" and that the federal victim surcharge "feels like just one more thing to collect."

3.3.3.2 Victim Services Revenues

The annual revenue for victim services in Manitoba has consistently been in the range of $250,000 for the past five years, save for a leap to $425,281 in the past fiscal year (2014-15). This jump represents an increase of $172,000 of revenue from the previous year's revenue of $253,940. Officials could not say whether this increase is due to the mandatory FVS or increased collection efforts or a combination of factors.

Table 3.3.1: Federal Victim Surcharges Imposed and Collected for Manitoba by Fiscal Year, 2010-2015
Year FVS Imposed FVS Collected
2010-11 N/A $250,498
2011-12 N/A $231,303
2012-13 N/A $265,152
2013-14 N/A $253,940
2014-15 N/A $425,281
3.3.3.3 Offenders' Sentence Completion

In this jurisdiction, there are no default hearings set; offenders, however, can request to serve time in lieu of payment.

3.3.4 Local Recommendations

There was consensus that a "complete overhaul" of the justice information system is needed in order to be able to answer regular data queries tracking the imposition and collection of the surcharge, but also to expedite the very processes being discussed (e.g. automated notifications/letters).

3.4 The Ontario Experience

There were five participants from Ontario who responded in writing to the interview questions from one department.

3.4.1 Standard Collection Process

All federal victim surcharges that remain unpaid are sent to the Ministry of Finance. These accounts are assigned to external third party Private Collection Agencies (PCAs), who then negotiate a payment plan with the offender based on what the offender can pay on a time schedule. One hundred percent of cases that have a defaulted federal victim surcharge are sent to collection agencies.

3.4.1.1 Fine Option Program

The Fine Option Program is not available in Ontario.

3.4.2 Standard Enforcement Process

At present the only enforcement process in place involves sending the outstanding federal victim surcharges to external third party Private Collection Agencies (PCAs); however, the Ministry of the Attorney General and the Ministry of Finance are working closely to begin a file transfer in 2016/17 to the Canada Revenue Agency (CRA) for income tax refund hold back.

3.4.2.1 Reasonable Time

The Lieutenant Governor in Council set the following by Order in Council on December 8, 1999:

When no fine is imposed, the federal victim surcharge imposed for a summary conviction offence shall be payable within 30 days from the date the surcharge is imposed; the federal victim surcharge imposed for an offence punishable by indictment shall be 60 days from the date the surcharge is imposed.

Offenders may request that the time given to pay the federal victim surcharge be extended by the Court by completing a form entitled "Application for Change of Terms and Conditions of a Fine Order" and filing it with the Court, where the order was made.

3.4.3 Impacts Due to Changes in the FVS

The impacts on this jurisdiction have been felt minimally in terms of administration of the federal victim surcharge regime but significantly in terms of the revenue generated for victim services.

3.4.3.1 Administration

There is some additional workload given federal victim surcharge orders must be completed in every case now, however the completion of these orders isn't especially time consuming.

3.4.3.2 Victim Services Revenues

Key informants noted that the total revenue for the federal victim surcharge was $1.1 million for the fiscal year ending March 31, 2013, which is the year immediately prior to the implementation date of October 2013. This represented approximately 2% of the total $46.9 million Victims' Justice Fund revenue collected that year. Total federal victim surcharge revenue collected was approximately $4 million for 2015-16. This represents approximately 8% of the total $47.4 million dollar collected in Victims' Justice Fund Revenue for 2015-16, representing an increase of approximately 6% in funding since the changes in October 2013. They stated that "this increase may not be considered significant in terms of total dollar revenues collected; however the increase has allowed the ministry to sustain its existing levels for spending on victim programs."

Further, when examining the trends of imposition and collection of the federal victim surcharge over the past six years the revenues generated have been consistently hovering around $1.2 million dollars; however, there was a marked increase in 2014-15 with $3.2 million collected on a $9.8 million imposition. The overall collection rate for the five year period from 2010-2015 has been estimated at 46%.

Table 3.4.1: Federal Victim Surcharges Imposed and Collected for Ontario by Fiscal Year, 2009-2015
Year FVS Imposed FVS Collected
2009-10 $1,583,851 $988,638
2010-11 $1,781,712 $1,242,612
2011-12 $1,579,184 $1,222,701
2012-13 $1,907,932 $1,278,499
2013-14 $3,373,362 $1,342,272
2014-15 $9,827,640 $3,240,072
3.4.3.3 Offenders' Sentence Completion

There are no known impacts on the offenders' ability to complete their sentence in this jurisdiction.

3.4.4 Local Recommendations

There were no recommendations from this jurisdiction.

3.5 The New Brunswick Experience

There were a total of five participants from the New Brunswick Justice system. The five key informants came from a total of two departments and three divisions.

The primary key informants (n=5) included:

3.5.1 Standard Collection Process

In New Brunswick the offender is provided a default hearing date at the time the federal victim surcharge is imposed. Where the federal victim surcharge is not paid, two scenarios could then unfold: if the surcharge is unpaid and the offender appears for the default hearing, the court imposes jail time; if the surcharge is not paid and the offender does not appear for the default hearing, a warrant of committal is then issued.

None of the informants were aware of any official documentation of this process as the judges know to assign the default hearing date at the time of sentencing.

3.5.1.1 Fine Option Program

The Fine Option Program does exist in New Brunswick; however, it is not available for FVS satisfaction.

3.5.2 Standard Enforcement Process

At the time of the previous research study in 2006 in the province (Law and Sullivan, 2006), the sole enforcement strategy of the federal victim surcharge regime in New Brunswick was, and still is, incarceration. The length of time is determined by the current default formula whereby an amount equal to eight times the provincial minimum hourly wage can be satisfied by one 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. Anecdotal evidence was offered that judges are known to engage in creative sentencing practices that in fact result in no time being served in lieu of payment of the surcharge; this was not considered to happen in the majority of cases, but rather in situations where individuals are "clearly unable to pay" due to addictions, unemployment, and/or homelessness.

3.5.2.1 Reasonable Time

A reasonable time frame to satisfy the federal victim surcharge has not been established by the Lieutenant Governor in Council in this jurisdiction. Further, data were not available to speak to the question on whether the surcharge is collected in a timely manner. It was noted that this was due to the fact that the current justice information system does not easily lend itself to "these sorts of requests" and the information would in fact have to be gleaned in a case by case manner to answer such a query.

3.5.3 Impacts Due to Changes in the FVS

When asked what problems New Brunswick has had with enforcement/collection of the federal victim surcharge the informants claimed there were "none, as it is a very straightforward process in NB where the offender is given the date of their default hearing at the time the fine is imposed." However, when the question was reworded to ask what the "challenges" have been, the information in the following sections was given.

3.5.3.1 Administration

There has been a marked (in fact the word used was "huge") increase in the paperwork for court staff that is now related to the surcharge regime that was not the case before the 2013 amendments, as there are now more default hearings, warrants of committal and warrants of arrest being issued. Clearly, the burden of the amendments has fallen on the shoulders of the court staff and the local police force executing the warrants of committal/arrest.

3.5.3.2 Victim Services Revenues

Over the past five years, New Brunswick has not exhibited a clear positive trend of increased federal victim surcharge revenue. Revenues steadily decreased from $310,634 in 2010-11 to $257,219 in 2012-13, until rebounding up to $353,052 and $536,014 collected in the last two years. Most notably, the imposition rate of the federal victim surcharge more than doubled in the last year reported, jumping from $514,511 in the previous year to $1,253,911 in 2014-15. The overall collection rate for the five year period from 2010-2015 has been estimated at 64 %.

Table 3.5.1: Federal Victim Surcharges Imposed and Collected for New Brunswick by Fiscal Year, 2010-2015
Year FVS Imposed FVS Collected
2010-11 $353,462 $310,635
2011-12 $334,960 $295,719
2012-13 $295,082 $257,219
2013-14 $514,511 $353,052
2014-15 $1,253,911 $536,014
3.5.3.3 Offenders' Sentence Completion

The process in New Brunswick does not hinder the sentence completion in any manner as an unpaid surcharge translates into time to be served. However, most often, time is not actually served.

3.5.4 Local Recommendations

There was an emphatic "suggestion" that the justice information system needs to be updated in order to facilitate future research requests, as well as improve the day-to-day operations of the court system.