Many bad things have been said about the “victim surcharge” which the Criminal Code requires people found guilty of an offence to pay, and which recent amendments have made mandatory, depriving judges of any discretion to waive it, regardless of whether it represented a disproportionate punishment for a minor offence or would cause great hardship to a destitute person. In a well-publicized recent judgment in R. v. Cloud, 2014 QCCQ 464, Justice Healy reviews and endorses a number of criticisms. “As applicable to many … offenders, the surcharge” ― really, he points out, just a fine ―
would disturb reasonable and informed people because it is disproportionate ― having regard to the quantum, the inflexibility of its terms and the inherent arbitrariness in distinguishing between cases where a fine is or is not imposed or cases that proceed by summary-conviction procedure or indictment. It is a blunt instrument that is far too blunt to achieve any valid penal purpose. (Par. 18; footnote omitted.)
Although it is purportedly meant to make offenders accountable to the people who suffer from their misdeeds,
[t]he surcharge is … contingent on the presence or absence of a fine or on the classification of offences [into indictable and summary-conviction offences]. This would appear to be arbitrary as a measure of the quotient of accountability of offenders. It is not apparent that a reliable and proportionate quotient of accountability can be derived from a percentage of a fine. Even less is it apparent that one-half, or double, the quotient of accountability can be assured by the classification of offences. This is obvious in the case of hybrid offences that require an election by the prosecution [to proceed by indictment or by way of summary conviction]. (Par. 26)
And although no constitutional challenge was before him, Justice Healy points out that the constitutionality of the surcharge might be questioned too, whether because it amounts in some cases to cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms, or because it contradicts the principle of individualization and proportionality in sentencing, which might be protected by s. 7 of the Charter.
On that last point, note that s. 7, which protects “the right to life, liberty and security of the person,” comes into play in a round-about way. The surcharge itself does not deprive anyone of life or liberty, and it is doubtful whether, even the case of an indigent person, the courts would find that a fine can amount to deprivation of the security of the person (though that’s certainly not impossible). Rather, s. 7 becomes involved because the non-payment of the surcharge can lead to imprisonment, and thus a deprivation of liberty.
Which brings me to the point I want to make in this post. One criticism of the “surcharge” that is missing from Justice Healy’s opinion and, so far as I can tell, from other public commentary too is that it is an unjustified deprivation of property. The right to property, of course, is conspicuously and deliberately missing from s. 7 of the Charter. I think that the “surcharge” demonstrates that its exclusion from the constitution is unfortunate, and that, contrary to conventional wisdom, it hurts the poor rather than the well-off.
That the “surcharge” is a government taking is quite clear. Although the Crown tried to argue in Cloud that, because the “surcharge” finances a fund that helps crime victims, it is a form of restitution, Justice Healy’s explanation of the reasons for which this argument fails is unassailable. In addition to relying on statutory language, Justice Healy points out that
[t]he surcharge is not compensation for actual loss to an identified person or entity and it has nothing to do with any notion of restitutio in integrum as that concept is legally understood. … Further, if the alternative to non-payment of the surcharge is participation in a fine-option programme or (where there is no such programme) imprisonment, it is nonsense to describe these mechanisms as a function of restitution. (Par. 40.)
I would only add that it is equally nonsensical to describe the “surcharge” as “restitution” when it is imposed on people sentenced for victim-less crimes, such as possession of drugs or firearms.
It is equally clear from Justice Healy’s reasons in Cloud that the “surcharge” hits the poorest and most marginalized members of society especially hard, both because they are more likely to get into trouble with the law and because they can least afford to pay it. As a general matter, if it is the case that offenders are, on average, poorer than the victims of crime (I do not know the numbers, but this seems a plausible assumption; Mr. Cloud’s case would certainly support it), then the “surcharge” effectively operates as a wealth transfer from the poor to the better-off. Of course, it is not the only government programme that operates in this way, and I suppose should not be unconstitutional for that reason alone.
But it is, even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. As Justice Healy points out in a passage quoted above, the surcharge is arbitrary because the amount of the “surcharge” imposed on an offender bears no relation to the “quotient of accountability” that ought to be imposed on them. It varies only according the number of counts of which a person is found guilty, the imposition or not of a fine, and the status of the offence as an indictable one or one punished by summary conviction. A person found guilty of two counts of assault will pay more than one guilty of a single count of first-degree murder. How that is supposed to foster accountability for crimes, or give any sort of relief to crime victims is beyond any conceivable rational explanation.
In its recent decision in Canada (Attorney General) v. Bedford, 2013 SCC 72 the unanimous Supreme Court explained that as a principle of fundamental justice enshrined in s. 7 of the Charter, non-arbitrariness is concerned with the existence of
a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. (Par. 111)
The “victim surcharge” is a flagrant violation of this principle. But, because s. 7 does not protect property rights, it can only be brought to bear on this iniquity through the back door. This is too bad. We accept that the government may not be cruel, or devious, or tyrannical. Why is it permissible for it to be greedy?
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