Victim Fine Surcharge
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General Principles
As of June 21, 2019, s. 737 reads as follows:
- Victim surcharge
737 (1) Subject to subsection (1.1), 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 for each offence, in addition to any other punishment imposed on the offender.
- Exception
(1.1) The court may order an offender to pay fewer victim surcharges than the number of offences, if it is satisfied that the total amount of the surcharges imposed on the offender for the following types of offences would be disproportionate in the circumstances:
- (a) any offence relating to the offender’s failure to appear before a court; and
- (b) any offence relating to a breach of any conditions of a release imposed on the offender by a peace officer or of any conditions of a court order, if that breach did not cause a victim physical or emotional harm, property damage or economic loss.
- 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.
- Exemption
(5) If an offender establishes to the satisfaction of the court that payment of a victim surcharge under subsection (1) would cause undue hardship to the offender, the court may, on application of the offender, make an order exempting the offender from the payment of the victim surcharge.
- Undue hardship
(6) For the purposes of subsection (5), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.
- For greater certainty
(6.1) For greater certainty, for the purposes of subsection (6), the imprisonment of the offender alone does not constitute undue hardship.
- Reasons
(6.2) When the court makes an order under subsection (1.1) or (5), the court shall state its reasons in the record of the proceedings.
- 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.
- Notice
(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.
- Enforcement
(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) or (1.1) and, in particular,
- Application — subsections (1.1) and (5) to (6.2)
(10) Subsections (1.1) and (5) to (6.2) apply to any offender who is sentenced for an offence under this Act or the Controlled Drugs and Substances Act, after the day on which those subsections come into force, regardless of whether or not the offence was committed before that day.
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; 2018, c. 16, s. 222; 2019, c. 25, s. 301.
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.[1]
- 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."[2]
- Constitutionality
The entire provision of s. 727 was found unconstitutional for being contrary to s. 12 of the Charter regarding "cruel and unusual punishment"[3]
- 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.[4]
- 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.[5]
- ↑ 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)(complete citation pending)
Pre-2018 Text
The previous drafting of s. 737 in force until the 2018 decision of Boudreault:[1]
- Victim surcharge
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis 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.
- Notice
(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.
- Enforcement
(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; 2018, c. 16, s. 222.
(see "Constitutionality" below)
– CCC
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.[2]
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:[3]
- 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.[4]
- ↑ R v Boudreault, 2018 SCC 58 (CanLII), per Martin J
- ↑ R v Griffin, 2014 CanLII 3533 (NL PC), per Gorman J, at para 36
- ↑ see s. 737(2)
- ↑ R v Tellier, 2000 ABCA 219 (CanLII), per curiam