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Constitutionality of Victim Fine Surcharge (VFS) Questioned

Fines are imposed in almost all drinking and driving cases.  Recent changes to sentencing by the Federal Government have doubled the Victim Fine Surcharges (VFS) from 15 to 30 percent, and done away with the Judge's discretion - they are now mandatory. VFS is a surcharge added to all criminal convictions: either a 30% addition for any fine, or if no fine, than $100 for each summary conviction and $200 for each indictable conviction. The money collected from this surcharge is meant to help victims of crime.

This recent change has caused some upset in the courts, with some judges refusing to impose it. The issue is that by making the VFS mandatory it has removed the ability of judges to determine if an accused person has the ability to pay or not. It is still not clear what will happen to offenders who are unable to pay the fine, but jail time is theoretically possible. Whether the Crown would follow up and enforce that is another matter.

Ian Carter, one of our partners, spoke about this issue before the Standing Senate Committee on Legal and Constitutional Affairs in April, 2013. In that appearance, Ian stated: "We need to be honest about this now-mandatory surcharge. It is a flat tax imposed on a member of society who is least able to pay for it. The resources that will now be deployed to collect the surcharge will far outweigh any benefit to be had from having made it in the first place. ... The judges who determine that is the appropriate sentence and would not otherwise impose a fine must now impose a fine automatically, and it is not tailored to the situation and it will be onerous. In that sense, it departs from the totality principle and goes away from the principles in sentencing that a judge would normally look at to apply to an individual case."

While VFS are now mandatory, they are being challenged before the courts on their constitutionality. This is an issue that will be likely litigated by courts across the country, and until it has been resolved one way or another it is a matter that must be considered by anyone facing a criminal charge.

Link: Proceedings of the Standing Senate Committee on Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Issue 34 - Evidence for April 17, 2013

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