Victim Fine Surcharge
As of June 21, 2019, s. 737 reads as follows:
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 to order the surcharge.
- Due Date
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."
The entire provision of s. 727 was found unconstitutional for being contrary to s. 12 of the Charter regarding "cruel and unusual punishment"
- Victim Surcharge is a Punishment Within Meaning of the Charter
The imposition of a victim surcharge is a form of fine which by its nature is a form of punishment and not merely a form of restitution.
- Cancelling Previous Orders
There is some suggestion that a provincial court has authority to grant expungement of any previously ordered victim fine surcharge made under the mandatory regime.
- R v Johnson, 2016 NSSC 297 (CanLII), 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 "reasonable time" to would be and so declined to order it
- see s. 2 of the Victim Surcharge Order, NLR 5/00
- R v Boudreault, 2018 SCC 58 (CanLII), per Martin J
- Boudreault, ibid., at paras 40 to 44
R v Seguin, 2019 ONCJ 257 (CanLII), per Renaud J
The previous drafting of s. 737 in force until the 2018 decision of Boudreault:
This section was struck down in its entirety on December 14, 2018 until an amendment came into force on June 21, 2019.
Old Discretionary Waiver
An offence that occurs before the 2013 amendment to s. 737 will be subject to the old rules permitting waiver of the fine.
Previous to amendments on 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.