The victim surcharge was created in order to levy a financial penalty on people convicted of a criminal offense at the time of sentencing.
History of the victim surcharge fund
The victim surcharge fund was created in 1989 in order to fund provincial victim services, which is also known as the “victim assistance fund.” The victim of a crime does not get the funds directly; rather the government puts the money the convicted person pays into a special fund overseen by province in which the fund is enforced.
The money that goes into this fund is used to help victims in general not just the victim of one particular crime.
The fund was established to provide one way in which the perpetrator is accountable to his or her victim.
Criminal Code of Canada
The victim surcharge is prescribed under s. 737(1) of the Criminal Code, which states that if a person is convicted or discharged under s. 737 of the Criminal Code, or a person is convicted under the Controlled Drugs and Substances Act, then the person is usually ordered to pay a victim surcharge in addition to the other punishments the person received.
The victim surcharges can vary in range depending on whether or not the offender was ordered to pay a fine.
If a person was already order to pay a fine then the victim surcharge will be added to that fine. The victim surcharge will be 30 per cent of the fine which the offender has received.
If no fine was imposed on the offender by the court the in the case of a minor (summary) crime conviction the offender has to pay $100. If the person was convicted of a serious (indictable) offence, then the offender has to pay $200.
It’s important to know that the victim surcharge is separate from other fines, restitution orders or compensation orders the court may make. A restitution order is made under a different section of the Criminal Code and is usually an order for an offender to directly pay damages to the victim.
Before 2013, Canadian judges had discretion to waive the victim surcharge in cases in which it would cause undue hardship for perpetrators. However, in 2013 the federal government made the victim surcharge mandatory.
Increasing offenders’ accountability
In 2013 the federal Conservatives passed the act which made it mandatory for judges to impose the victim surcharge in all cases.
Judges had their discretion, whether or not to impose the surcharge, withdrawn and must now impose it in all relevant cases. Those offenders who are unable to pay a victim surcharge can participate in a community service program. The only problem being, those programs don’t exist in Newfoundland and Labrador, British Columbia and Ontario.
Challenges to the mandatory victim surcharge
Although the surcharge has survived some court challenges, an Ontario judge declared the surcharge unconstitutional. Since that judgment, other judges have followed his example, even though his decision was not binding on other courts, meaning the surcharge is still mandatory as of now. Whether the victim surcharge stays mandatory and/or will face other challenges remains to be seen.
Legislative Summary of Bill C-37: Increasing Offenders’ Accountability for Victims Act
Victim surcharge - Criminal Code of Canada