Mandatory Victim Surcharge Found Unconstitutional

Breface:

The Canadian Criminal Code (CCC) at section 737 imposed a mandatory surcharge on anyone who pleads or is found to be, guilty, of an offence under the CCC or the Controlled Drug and Substances Act (CDSA). It was to be collected and used to fund victim support services. It also was meant to increase an offender's accountability to both their victims and the community.

The amount of the surcharge was fixed at 30% of any fine imposed, or where there was no fine, at $100.00 for every summary conviction count and $200.00 for every indictable count. Judges could increase, but could not decrease, the surcharge amount. The surcharge imposition could not be appealed unless it was levied beyond the minimum amounts.

The surcharge cannot be waived by the sentencing judge and when imposed it remains a debt of the offender until paid in full. The only relief available is to seek an extension of time in which to pay.

The Challenge:

At their sentencing hearing, several offenders challenged the constitutionality of the surcharge. They were all living in serious poverty and suffered from some combination of addiction, mental health and/or disability. The court recognized that many citizens involved with the criminal courts are disadvantaged and/or marginalized. As long as the surcharge is not paid they may be taken into custody, imprisoned, are unable to seek a pardon and possibly targeted by collection agencies.

The challenge was on the grounds that the surcharge was:

•      Cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights and Freedoms (Charter);

•      Violated their right to liberty and security of the person contrary to section 7 of the Charter.

The Decisions Below:

The offenders were from Ontario and Quebec. The result at their sentencing hearings varied but the Courts of Appeal of both provinces ruled the surcharge to be constitutional.

The Surcharge is Unconstitutional and Inoperative:

The Supreme Court of Canada (SCC) in R. v. Boudreault allowed the appeals and found the surcharge to be an impermissible form of cruel and unusual punishment contrary to section 12 of the Charter. It also could not be saved under section 1 of the Charter. It was therefore invalid and of no effect. The charter challenge under section 7 of the Charter was not addressed as a result.

Punishment:

The SCC was clear that the surcharge was to be considered a punishment. The test was clearly met in this case. It required the offender to show that the state action was:

•      A consequence of their conviction that formed a part of the arsenal of sanctions to which an accused may be liable, and either

•      Is imposed in furtherance of the purpose and principles of sentencing, or

•      Has a significant impact on the offender's liberty or security interests.

Cruel and Unusual:

This next step was a high hurdle to overcome. To be cruel and unusual, the punishment must be more than just excessive or disproportionate. It must be of such significance so as to outrage the standards of decency and be intolerable and abhorrent to society as a whole.

Although the surcharge is not a mandatory minimum sentence for a  specific offence, the SCC used the two-part test for such sentences to determine if the surcharge was grossly disproportionate. That involved a determination of what was a proportionate sentence for the offence committed according to sentencing principles, and then, asking whether the mandated punishment was grossly disproportionate to the proportionate sentence. This would be applied to the appellant's case or a reasonable hypothetical offender.

A Fit Sentence:

The SCC concluded that the surcharge was not a fit sentence for the appellants or a reasonable hypothetical offender. Sentencing is to be an individualized exercise. It must take into account the circumstances of the offender. This includes the ability to pay which is absent for the appellants.

Grossly Disproportionate:

The surcharge was found to be grossly disproportionate for the appellants because of their impecuniosity. It did serve a valid penal purpose but created egregious effects for the offenders and fundamentally disregarded the principle of proportionality in sentencing.

It did so because of:

•      The disproportionate financial consequences;

•      The constant threat of imprisonment or detention;

•      The possibility of collection efforts by agencies employed by provincial governments to collect the surcharge;

•      They became de facto indefinite sentences.

Section 1 Charter Justification:

The government did not offer any evidence or argument to justify the surcharge if found to have breached a Charter right. Accordingly, there could be no justification found to support the surcharge.


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