Supreme Court of Canada rules mandatory victim surcharges unconstitutional.
Tuesday, January 08, 2019 - Filed in: Courts
"Under s. 737 of the Criminal Code, everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act is required to pay monies to the state as a mandatory victim surcharge. The amount of the surcharge is 30 percent of any fine imposed, or, where no fine is imposed, $100 for every summary conviction count and $200 for every indictable count. Although sentencing judges have the discretion to increase the amount of the surcharge where appropriate, they cannot decrease the amount or waive the surcharge for any reason. The imposition of the surcharge cannot be appealed.
At sentencing, several offenders challenged the constitutionality of the surcharge on the basis that it constitutes cruel and unusual punishment, contrary to s. 12 of the Charter, violates their right to liberty and security of the person, contrary to s. 7 of the Charter, or both. The offenders all live in serious poverty and face some combination of addiction, mental illness and disability. While the results were mixed at sentencing, the respective courts of appeal rejected the constitutional challenges."
The S.C.C. (7:2) allowed the appeals; section 737 of the Criminal Code infringes s. 12 of the Charter, not saved by s. 1, and is invalidated immediately.
At sentencing, several offenders challenged the constitutionality of the surcharge on the basis that it constitutes cruel and unusual punishment, contrary to s. 12 of the Charter, violates their right to liberty and security of the person, contrary to s. 7 of the Charter, or both. The offenders all live in serious poverty and face some combination of addiction, mental illness and disability. While the results were mixed at sentencing, the respective courts of appeal rejected the constitutional challenges."
The S.C.C. (7:2) allowed the appeals; section 737 of the Criminal Code infringes s. 12 of the Charter, not saved by s. 1, and is invalidated immediately.
Justice Martin wrote as follows (at paras. 1-4, 110):
"Under the Criminal Code, R.S.C. 1985, c. C-46 (“Code ”), anyone who is discharged, pleads guilty to, or is found guilty of an offence under the Code or the Controlled Drugs and Substances Act, S.C. 1996, c.19 , (“CDSA ”) is required to pay monies to the state as a “mandatory victim surcharge”. The amount is set by law and is owed for each and every summary conviction or indictable offence. The surcharge is intended to fund government programs designed to assist victims of crime. The surcharge applies regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim.
Judges must impose a surcharge in every case — they have no discretion to waive this surcharge and cannot decrease it. Its imposition can only be appealed when the amounts imposed exceed the minimum mandated amount. Once the surcharge is levied, an individual remains indebted to the state until the amount is paid in full, although a court may, on application, give the offender more time to pay.
Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized. When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence. As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies. In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization.
These appeals are concerned with whether the mandatory victim surcharge is consistent with ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (“Charter ”) and, if not, whether that inconsistency can be justified under s. 1 of the Charter. I conclude that the mandatory surcharge amounts to, and operates as, a constitutionally impermissible form of cruel and unusual punishment. Consequently, s. 737 of the Code violates s. 12 of the Charter and cannot be saved under s. 1. Given this conclusion, it is unnecessary to address s. 7.
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Ultimately, for both several of the appellants and the reasonable hypothetical offender, the mandatory victim surcharge is unmoored from its legitimate objectives. Judges are forced to impose a one-size-fits-all punishment which does not take into account the individual’s ability to pay. In this context, the resulting indeterminate punishment results in a grossly disproportionate public shaming of disadvantaged offenders. It is what most Canadians would call an abhorrent and intolerable punishment. Put simply, in our free and democratic society, it is cruel and it is unusual."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.