mandatory victim surcharge and cruel unusual punishment consequences

The criminal justice system is designed to maintain order, protect the public, and provide a means for rehabilitation. However, certain laws can impose significant burdens on vulnerable populations, particularly those already struggling with socioeconomic challenges. One such law is the victim surcharge mandated by Canadian legislation, which has sparked considerable debate regarding its implications and consequences for offenders. Understanding the nuances of this law is crucial for grasping its impact on individuals navigating the legal system.

In recent years, the mandatory victim surcharge has become a focal point in discussions about justice and fairness in sentencing. As we delve into the details of this law, it's important to consider both the historical context and its current implications, especially for marginalized individuals in cities like Toronto, Ottawa, and Hamilton.

Background of the victim surcharge legislation

On October 24, 2013, amendments to the Canadian Criminal Code significantly changed how victim surcharges were applied. These changes were part of a broader initiative by the Conservative government aimed at adopting a "tough on crime" stance. The revisions to section 737 of the Criminal Code mandated that all offenders pay a victim surcharge upon conviction, regardless of their circumstances.

Prior to these amendments, judges had considerable discretion regarding the application of the surcharge. They could waive it if payment would result in undue hardship for the offender or their family. This flexibility acknowledged that many individuals within the criminal justice system come from economically disadvantaged backgrounds, and for them, even a nominal fee could pose significant financial strain.

Understanding the implications of the victim surcharge

The victim surcharge is calculated as follows:

• 30% of any imposed fine
• $100 for summary conviction offences
• $200 for indictable offences

For many offenders, particularly those facing addiction or mental health challenges, these amounts can be burdensome. The consequences of failing to pay the surcharge extend beyond mere financial penalties; they can lead to various adverse outcomes, including:

• Inability to renew licenses or permits (e.g., driver's licenses)
• Restrictions on applying for criminal record suspensions
• Potential for increased legal complications

Judicial challenges and constitutional considerations

As the mandatory victim surcharge began to take effect, it faced criticism in the courts. Notably, the Ontario Court of Justice found the amended section 737 unconstitutional in several cases. One landmark decision was R. v. Michael, where Justice Paciocco ruled that requiring an individual with severe socioeconomic disadvantages to pay the surcharge constituted cruel and unusual punishment. This case highlighted the disparity between the legal expectations placed on offenders and the realities of their circumstances.

In contrast, Justice Glass in R. v. Tinker argued that the surcharge was not a punishment per se but rather a consequence of breaking the law. This distinction sparked further debate regarding the nature of the surcharge and its alignment with human rights principles. Tinker's ruling did not address several critical issues raised in the Michael decision, leaving the legal community divided over the interpretation of the law.

Recent legislative developments: Bill C-28

In response to ongoing concerns regarding the victim surcharge, the Liberal government introduced Bill C-28. This proposed legislation aims to restore a measure of discretion to judges, allowing them to waive the surcharge if an offender can demonstrate that payment would cause undue hardship. While this amendment is a step in the right direction, it raises questions about the vagueness of the requirements and how they will be interpreted by the courts.

The bill stipulates that "the imprisonment of the offender alone does not constitute undue hardship," which may complicate matters for many offenders, especially those grappling with addiction or mental health issues. For instance, individuals in cities like Brampton or Mississauga, who often face obstacles in proving their financial distress while incarcerated, may find it challenging to meet the burden of proof required by the court.

The role of defence counsel in advocating for offenders

With the potential for legal changes on the horizon, the role of defence counsel becomes increasingly vital. Lawyers must effectively advocate for their clients by ensuring that the criteria for demonstrating undue hardship are reasonable and contextually appropriate. It's essential to recognize that for individuals with means, the victim surcharge may seem like a minor consequence of their actions.

However, for the most vulnerable populations, such as those facing homelessness or mental health challenges, the imposition of a surcharge can feel overwhelmingly punitive. Defence attorneys in Ontario, whether in Toronto, London, or other regions, must work diligently to safeguard the rights of their clients against potential injustices stemming from this law.

Conclusion

The victim surcharge continues to be a contentious issue within the Canadian legal landscape, raising significant ethical and practical concerns about its impact on marginalized offenders. As legal professionals navigate the complexities of these laws, it is imperative to advocate for policies that promote fairness and justice for all individuals, regardless of their socioeconomic status.

If you have questions regarding the victim surcharge or the ongoing changes to section 737 of the Criminal Code, do not hesitate to reach out to legal experts like Hicks Adams at 416-975-1700.

Adam Forbes, Associate, Hicks Adams

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