To Charge or not to Charge? That is no longer the Question

criminal law

The Ontario Court of Appeal finds no harm or foul in blanket mandatory fines.

Pursuant to Section 737 of the Criminal Code of Canada, The Victim Fine Surcharge is a mandatory fine imposed on each and every individual that is found guilty of a criminal offence in Canada. On each summary conviction: $100. On each indictable offence: $200. Or, 30% of any fine imposed by the court. The monies paid fund support mechanisms for victims of crime. This fine is imposed despite an individual’s economic background or ability to pay. In R. v. Tinker et al. 2017 ONCA 552 a constitutional challenge was brought under sections 7 and 12 of the Charter of Rights and Freedoms alleging the mandatory blanket fine, without giving consideration to the socio-economic status relative to each individual, is a violation of fundamental rights. The Court of Appeal disagreed.

Ontario’s Court of Appeal takes no issue with the blanket mandatory fines, because, according to the Court:

  • A court may offer an extension of time to pay
  • An impoverished offender who cannot pay cannot be imprisoned
  • There is no civil enforcement mechanism to enforce collection of the surcharge

Volunteering one’s time in the community may perhaps be a suitable alternative for those who cannot pay a surcharge. The issue is, despite the available mechanisms for asking for an extension of time to pay, that extension is discretionary, and can be denied by a Judge. Though an impoverished offender who cannot pay may not be incarcerated, or be compelled to pay: why do we mandate that individual to pay a fine? In addition, there is a mechanism under the regime to lay an information against and individual for failure to pay their fines which can result in imprisonment (the circumstances surrounding an impoverished individual may make it statutorily impossible to impose a prison sentence).

Pursuant to Section 737 of the Criminal Code of Canada, The Victim Fine Surcharge is a mandatory fine imposed on each and every individual that is found guilty of a criminal offence in Canada.The individuals affected most by this blanket fine, in addition to those who are homeless or impoverished, are those who commit crimes to support their drug addictions. Many individuals who are moderate to severe drug addicts often have criminal records that carry on for pages and pages. Essentially, the addict will commit crimes like stealing money from store tills ($20 here, $100 there) in order to pay for their addiction. What then happens is this: that individual is charged with multiple offences. Then these individuals are taken into custody. They suffer sever withdrawal symptoms, want to be released as soon as possible, and so they end up pleading guilty to multiple offences all in one blow. So, then we as community mandate that these drug addicts be saddled with potentially thousands of dollars of victim fine surcharges that need to be paid. These individuals often have little to no support system, no fixed address, and courtesy of their criminal record, are not likely to be hired at any standard business location. How is this helpful to anyone?

The Court of Appeal reiterated that the purpose of the Victim Fine Surcharge is the following:

  1. To rectify some of the harm done by criminal activity by raising funds for public services devoted to assisting victims of crime; and
  2. To hold offenders accountable to victims of crimes and to the community by requiring a contribution by them to these funds at the time of sentencing

But if certain individuals cannot be civilly compelled to pay, and can avoid imprisonment due to their impoverishment, then how are the two above goals met if the take-home message to an impoverished offender is that they can ignore their obligations so long as they continue their current lifestyle?

The individuals affected most by this blanket fine, in addition to those who are homeless or impoverished, are those who commit crimes to support their drug addictions.Rather, why don’t we have a mechanism whereby the contribution to victim services was not necessarily financial, but could involve other contributions that were specifically suited to each offender and each set of facts? Volunteering one’s time in the community may perhaps be a suitable alternative for those who cannot pay a surcharge. Even the simple ability for a sitting Justice to adjust the amount of the fine to suit each individual’s financial circumstances would be a welcome rectification of the regime. Similar to the principal of totality in sentencing where the judge must consider the net or bulk worth of the sentences imposed on all the offences an individual has been found guilty of before passing sentence, a Judge could consider the net or bulk worth of what surcharge should be imposed on each individual offender. For instance, if an impoverished drug addict with no family support or fixed address robs 10 stores in one plaza, having stolen $700 total in cash, having been sentenced to several months in jail, under the current regime that offender would be liable to pay a minimum of a $1000 fine upon release. Alternatively, a Judge presiding over his case could substitute some community service hours to fulfill his obligation to victim services, and perhaps reduce the surcharge to $200 which would still be a high fine amount for that specific individual and would still connote the purpose and principles of the Victim Fine Surcharge regime.

Instead, what we have is a regime that demands money from many who cannot pay. The middle-class family man convicted of a drinking and driving offence after leaving a dinner party one fateful night will not be adversely affected by this regime. But what about those in our community who are cast aside, shunned and forgotten?

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


A Publication of CPLEA