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The Supreme Court of Canada has struck down the
mandatory victim surcharge in section 737 of the Criminal
Code on the grounds that it is a cruel and unusual punishment
prohibited by section 12 of the Charter. This is an
important decision that could impact the constitutional validity of
other mandatory minimum sentences.
The victim surcharge required everyone who was
discharged, pled guilty to, or was found guilty of an offence under
the Criminal Code or the Controlled Drugs and
Substances Act to pay an amount equal to 30% of any fine
imposed, or where no fine was imposed, $100 for each offence
punishable by summary conviction and $200 for each offence
punishable by indictment. Consequences for a failure to pay
the surcharge included the threat of imposition of a deemed period
of imprisonment, and committing the offender for non-payment
without a reasonable excuse.
In October 2013, amendments to the Criminal Code
removed judicial discretion to waive or vary the surcharge if it
resulted in undue hardship, making it mandatory in all cases.
The appellants before the Supreme Court of Canada were
individuals who had challenged the constitutional validity of the
mandatory victim surcharge at sentencing. After experiencing
mixed success in the lower courts, the Ontario Court of Appeal and
Quebec Court of Appeal found that the mandatory victim surcharge
were constitutionally valid.
On appeal to the Supreme Court of Canada, the appellants
challenged the mandatory victim surcharge under sections 7 and 12
of the Charter. A majority of the Supreme Court
found that it constituted cruel and unusual punishment because a
fit sentence for certain of the appellants and other offenders
would not include the surcharge, and that for those appellants and
similar offenders who have no ability to pay, the effects of the
surcharge – including disproportionate financial
consequences, the threat of detention or imprisonment, the threat
of provincial collections efforts, and the enforcement of de
facto indefinite criminal sanctions – were egregious and
fundamentally disregarded proportionality in sentencing. The
Supreme Court found that the breach of section 12 of the
Charter could not be saved under section 1 because the
respondents had not put forward argument or evidence to justify the
surcharge.
In addition to finding the mandatory victim surcharge violated
section 12 of the Charter, the Supreme Court clarified
that it fell within the definition of "punishment" in
section 12 of the Charter, and that the appropriate remedy
for the constitutional violation was to strike down section 737 of
the Criminal Code with immediate effect.
The Court also left open the possibility that individuals
already subject to surcharge amounts that they cannot pay and
can no longer challenge could obtain relief from the
unconstitutional effects of the surcharge, either by seeking an
individual remedy under section 24(1) of the Charter or
through administrative or legislative intervention by the
government or Parliament.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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