Victim Fine Surcharge
Section 737 concerns victim fine surcharges:
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is
- (a) 30 per cent of any fine that is imposed on the offender for the offence; or
- (b) if no fine is imposed on the offender for the offence,
- (i) $100 in the case of an offence punishable by summary conviction, and
- (ii) $200 in the case of an offence punishable by indictment.
Increase in surcharge
(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.
Time for payment
(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.
(5) and (6) [Repealed, 2013, c. 11, s. 3]
Amounts applied to aid victims
(7) A victim surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.
(8) The court shall cause to be given to the offender a written notice setting out
- (a) the amount of the victim surcharge;
- (b) the manner in which the victim surcharge is to be paid;
- (c) the time by which the victim surcharge must be paid; and
- (d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.
(9) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular,
- (a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and
- (b) the notice provided under subsection (8) is deemed to be an order made under section 734.1.
(10) [Repealed, 2013, c. 11, s. 3]
R.S., 1985, c. C-46, s. 737; 1995, c. 22, ss. 6, 18; 1996, c. 19, s. 75; 1999, c. 5, s. 38, c. 25, s. 20(Preamble); 2013, c. 11, s. 3; 2015, c. 13, s. 28.
According to section 737, an "offender who is convicted or discharged...shall pay a victim surcharge". Under s. 737(2), the amount will be either
- 30% of any fine imposed;
- $100 for each summary conviction offence, or
- $200 for each indictable offence
The fine is presumed payable immediately unless the court is satisfied that time is needed to pay.
While some courts have found other reasons to decline ordering the surcharge.
Provincial legislation may impose due dates as permitted under s. 737(4). In Newfoundland and Labrador the Victim Surcharge Order, requires that "Where a court does not impose a fine for an offence, a victim surcharge arising under the Criminal Code shall be paid within 30 days of the date of conviction or discharge of the offence."
There has a been at least a few successful constitutional challenge under s.7 of the Charter for gross disproportionality or were cruel and unusual punishment under . While others have stated that the fine does not reach the level of cruel and unusual punishment.
- R. v. Johnson, 2016 NSSC 297 per Duncan J at paras 60 to 62 - judge sentencing accused to second degree murder states that he has no way of assessing the meaning what a "reasonble time" to would be and so declined to order it
- see s. 2 of the Victim Surcharge Order, NLR 5/00
R v Tinker, 2014 ONCJ 208 (CanLII)
R v Flaro, 2014 ONCJ 2 (CanLII)
R v Williams, 2017 CanLII 16174 (NL SCTD)
Old Discretionary Waiver
Offence that occur before the 2013 amendment to s. 737 will be subject to the old rules permitting waiver of the fine.
Previous to amendments in October 24, 2013, s. 737(5) and (6) permitted the waiver of the VFS "[w]hen the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependents of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender" from paying the fine. The court must give reasons for this exemption.
The amounts to be imposed consisted of either:
- 15% of any fine imposed;
- $50 on each summary conviction count; or
- $100 on each indictable conviction count.
If no request was made, the fine was presumed to be imposed.