In 2013, the Government amended the victim fine surcharge law, taking away the Judges’ discretion in whether to impose the surcharge. In all cases when offenders were discharged, plead guilty or found guilty of an offence under the Criminal Code of Canada or the Controlled Drugs and Substances Act they were required to pay a victim fine surcharge. The surcharge was 30% of any fine imposed or $100 for every summary conviction count and $200 for every indictable count.
An appeal to the victim fine surcharge was heard in the Supreme Court of Canada on April 17, 2018 in the case of R. v. Boudreault. The Appellants position was that the automatic victim fine surcharge was unconstitutional in that it was cruel and unusual punishment contrary to section 12 of Canadian Charter of Rights and Freedoms.
After hearing from many intervening parties, the Supreme Court of Canada determined the Charter was infringed by this law and was not saved by section 1 of the Charter.
The court found the victim fine surcharge constituted punishment for a number of reasons. The surcharge flows automatically from a conviction or discharge; therefore, increasing the punishment from what was already the appropriate sentence. Sentencing is a very individualized process; however, with the surcharge all discretion is taken away from Judges and they are unable to consider any mitigating circumstances that could militate away from imposing the surcharge.
As a result of the surcharge functioning as a fine it can lead to a grossly disproportionate sentence for a number of reasons.
First, it causes them to suffer deeply disproportionate financial consequences, regardless of their moral culpability. Second, it causes them to live with the threat of incarceration in two separate and compounding ways — detention before committal hearings and imprisonment if found in default. Third, the offenders may find themselves targeted by collections efforts endorsed by their province of residence. Fourth, the surcharge creates a de facto indefinite sentence for some of the offenders, because there is no foreseeable chance that they will ever be able to pay it. This ritual of repeated committal hearings, which will continue indefinitely, operates less like debt collection and more like public shaming. Indeterminate sentences are reserved for the most dangerous offenders, and imposing them in addition to an otherwise short-term sentence flouts the fundamental principles at the very foundation of our criminal justice system.
As a result, the court found mandatory victim fine surcharges breached the Charter. The Supreme Court declared section 737 of the Criminal Code to be or no force and effect and currently there are no victim fine surcharges applied in any criminal cases.