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Top court strikes down mandatory victim surcharge

December 17, 2018

Lawyer’s Daily talks to Vanora Simpson about R. v. Boudreault

On December 14th, the Supreme Court of Canada struck down the mandatory victim surcharge on the basis that it imposed cruel and unusual punishment on poor defendants, contrary to s. 12 of the Canadian Charter of Rights and Freedoms.

The victim surcharge – essentially a fine – has been around since 1988. However, in 2013, the Harper government made the surcharge mandatory, no matter the offence at issue, and doubled the amounts judges were required to impose. It has been roundly criticized because it does not allow sentencing judges to consider mitigating factors, can result in a disproportionately severe sentence, undermines rehabilitation and makes it more difficult to address the problem of over-representation of Indigenous persons in the country’s prisons. As the Supreme Court described:

Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized. When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence. As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies. In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization.

In striking down the law, the Supreme Court held: “…the impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable.”

The Lawyer’s Daily spoke to a number of the lawyers involved in arguing the case before the Supreme Court, including Vanora Simpson who represented the Criminal Lawyers’ Association:

On behalf of the intervener Criminal Lawyers’ Association, Vanora Simpson of Toronto’s Goldblatt Partners, said the impact of the ruling is “immediate and dramatic.”

“It affects every single person found guilty in Canadian courts in a way few other rulings have,” she noted. “The court appreciated that many offenders caught in the criminal justice system face multiple disadvantages. For those, like many of the appellants in this case, who are homeless or struggle with mental illness or disability or addiction issues, the victim surcharge could never be paid. As the court notes, it then creates an indefinite sentence.”

Simpson said many people still have old unpaid surcharges, thus perpetuating the cruel and unusual punishment imposed by the unconstitutional law.

“The provincial and federal government should speedily enact measures to forgive those debts,” she urged. “That would be a far more just and efficient approach than the alternative: every person with an unpaid victim surcharge can apply for it to be quashed when they next appear before a court for the regular inquiry into ability to pay.”

You can read the entire article here.



Vanora Simpson

Practice Areas

Constitutional Law, Criminal Law