Supreme Court to hear victim surcharge case

The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick.
The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA – The Supreme Court of Canada agreed Thursday to look at whether it’s unconstitutional to make a poor person convicted of a crime pay a surcharge that helps victims.

The case at issue involves Alex Boudreault, a high-school dropout who had never held a steady job and who pleaded guilty in September 2013 to four counts relating to various breaches of probation orders.

A few months later, the Quebec man pleaded guilty to several other counts, including breaking-and-entering, possession of stolen property and assault with a weapon.

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In 2015, a Quebec court sentenced Boudreault to 36 months in prison and ordered him to pay a victim surcharge of $1,400 – rejecting his argument the fee infringed the charter guarantee against cruel and unusual punishment.

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The Quebec Court of Appeal rejected Boudreault’s challenge of that ruling last year.

The Supreme Court, as usual, gave no reason for agreeing to hear to hear the case.

The federal victim surcharge, imposed on offenders at the time of sentencing, is used by provinces and territories to help fund programs and services for victims of crime.

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The surcharge has existed for decades. But under changes brought in four years ago by the previous Conservative government, judges lost the discretion to waive the fee for offenders who genuinely cannot pay.

The Conservative move had prompted something of a revolt at the lower court level. Judges in a number of provinces either refused to impose the surcharge for impoverished offenders, gave them a payment deadline decades into the future or levied fines so small that the surcharge amounted to nickels and dimes.

In turn, several appeal courts overruled those decisions.

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The amount of the victim surcharge is 30 per cent of any fine that is imposed on an offender. If no fine is levied, $100 is charged for a summary conviction offence or $200 for an indictable offence. The money is paid into provincial and territorial assistance funds to develop and provide programs, services, and assistance for victims of crime.

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The amount may be increased if the court is satisfied that it is appropriate in the circumstances and that the offender has the ability to pay the increased amount.

Some defence lawyers complained that the surcharge produced a two-tier system divided between those who can afford the surcharge and those too poor to pay.

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Last October, Justice Minister Jody Wilson-Raybould introduced legislation that would again give judges discretion to waive the charge if an offender is truly unable to pay. It awaits second reading in the House of Commons.

The legislation would authorize a sentencing court to exempt payment of the surcharge if an offender applies for a waiver and demonstrates that payment would cause undue hardship. The bill makes clear that undue hardship relates to the financial inability to pay for reasons such as unemployment, homelessness, and significant financial obligations to dependants.

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