By Matthew Rochester
This memo seeks to identify how a defendant can successfully apply for exemption to the imposition of a victim surcharge under section 737 of the Criminal Code. Exceptions under statute will allow offenders on application, or the court on its own motion, to pay no victims surcharge or a reduced amount if it is satisfied that (a) the surcharge would cause undue hardship to the offender; or (b) would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or the degree of responsibility of the offender (s.737(2.1)). Therefore, this analysis will explore the courts requirements for undue hardship and for proportionality to the gravity of the offence or degree of responsibility of the offender.
After 2013 and prior to R v Boudreault (2018), there was no judicial discretion in determining any exceptions to the enforcement of a mandatory victims surcharge and instead arguments were presented under section 12 of the Charter of Rights and Freedoms for “cruel and unusual punishment.” These provision have since been amended for the reintroduction of judicial discretion to not order payment of a victim surcharge (R v Boudreault).
The statute now clarifies that undue hardship is defined as meaning “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.” Moreover, (2.3) states that imprisonment alone does not constitute undue hardship.
Generally speaking, an offender would have the opportunity to prove on a balance of probabilities that they would be unable to pay a victim surcharge by conveying to the court that they have minimal income, are being supported by others such as family members, that they would likely have to declare bankruptcy, as well as other factors that illustrate the offenders inability to pay (R v Downey 2020). However, the court will consider a range of contextual factors in this assessment, and the contention that a party may have to declare bankruptcy would be weighed against their current yearly earnings, assets, familial obligations, etc (Chartered Professional Accountants of Ontario v Gujral 2020).
This does not mean that the party opposing the fine assumes a formal evidential or persuasive burden of proof, but instead that he or she remains free to argue that the evidence relied upon by the proponent of the fine should not satisfy the court that the offender is able to pay (Chartered Professional Accountants of Ontario v Gujral 2020).
In considering proportionality factors relating to the gravity of the offence, the court will consider: the nature of the offence itself, the harm caused to the victim of the offence, the harm caused to society and its values, and other aggravating and mitigating circumstances (R v Ipeelee 2012).
For the degree of responsibility of the offender the court will consider: the offenders criminal record, the offenders personal circumstances (pre-offence circumstances relating to the offenders commission of the offence), the offenders acceptance of responsibility, the degree of risk of reoffending, as well as other mitigating or aggravating factors (R v Krahn 2018).
Because of this, arguments claiming that a victim surcharge is disproportionate in any given case will be heavily fact specific. For example, in R v Laroche 2011, the offender was given 6 years imprisonment and fined a total of $786,000 in addition to a victim surcharge of 15%. In this case it was argued that because the victim surcharge would be due in 30 days it required the offenders assets (consisting of multiple immovable properties) to be sold and that this obligation for him to sell at a discount would potentially result in an additional and possibly substantial fine on him.
In consideration of this and the totality of fines already issued, the judge ruled that the initial fine was appropriate without imposing an additional 15% for the victim surcharge but that it was necessary to amend the fines so that the surcharge would be $117,900 and the fines would total $668,100 as well as varying the time required for the offender to make payment (R v Laroche 2011).
Broadly speaking, it would have to be argued on each unique set of circumstances that the imposition of a victim surcharge coupled with the time requirements for repayment would create a sentence that is disproportionate based on the individual circumstances of each case.
For an individual to claim exemption from the imposition of a victim surcharge where there is already a substantial fine in place, a party would have to claim that they are impecunious, and that an additional 30% surcharge of the fine would leave them unable to pay by proving on a balance of probabilities their inability to pay. Moreover, if the fines in place are already substantial, then it can be argued that an additional 30% would create a sentence that is disproportionate to the degree of responsibility, which would be based on the totality of the fines coupled with short time limit to pay the surcharge for such a large amount.
