Restoring judicial discretion
Ottawa pledges to cover shortfall from proposed changes to victim surcharge
OTTAWA — The Liberal government’s plan to allow judges to excuse impoverished offenders from paying a federal victim surcharge could end up shrinking provincial budgets, so Ottawa is prepared to shell out some extra cash — for a time.
“Provinces that demonstrate losses or that anticipate losses in revenue as a result of the proposed amendments may apply for transitional funding to offset these costs,” David Taylor, a spokesman for Justice Minister Jody Wilson-Raybould, wrote in an email statement.
Taylor added the funding could be made available for three years, beginning this year.
The Liberal government introduced legislation last October aimed at partly overturning a controversial change the previous Conservative government had made to the federal victim surcharges that judges impose on offenders at sentencing.
The surcharge came into effect in 1989 as a way to make offenders cover at least some of the costs associated with the impact of crime, by having the provinces and territories collect the money and use it to help fund programs and services for victims.
Judges had the discretion to waive the levy if they believed it would cause “undue hardship” to offenders or their dependents.
That changed in 2013, when the Conservative government doubled the amount and made it mandatory, even if the offender could not afford to pay.
Those changes prompted protests from some judges, as well as court challenges under the Charter of Rights and Freedoms.
The legislation the Liberal government tabled last fall, Bill C-28, would restore limited discretion to judges.
That could mean reduced revenues for provincial and territorial governments, says a memo prepared for Wilson-Raybould last September.
The Canadian Press obtained the memo through the Access to Information Act.
The majority of the document was redacted, but the title suggests officials were exploring the possibility of dipping into the federal Victims Fund, which has a $27.8-million budget this year, to make up for the potential shortfall. The memo includes figures showing lapsed funding that would provide some room to do so.
The memo also shows how much money the federal victim surcharge had provided to provinces and Yukon territory annually over five years ending in 2015, a period that includes before and after the Conservatives made it mandatory.
In 2014-15, the provinces and the territory collected nearly $15.4 million.
The Justice Department said more recent statistics are not yet available.
It is difficult to predict the fiscal impact of Bill C-28, which has yet to be debated in the House of Commons.
On the one hand, the numbers in the memo do show that, with the exception of Prince Edward Island, revenue from the federal surcharge increased after the Conservatives made it mandatory.
On the other hand, the numbers in some cases reveal a growing discrepancy between the amount imposed and the amount actually collected, suggesting that allowing judges to waive the federal surcharge in some cases could increase the collection rate.
In Ontario, for example, 2014-15 saw more than $9.8 million in federal surcharges imposed on offenders, but only $3.2 million was collected.
In 2012-13, judges imposed only $1.9 million in federal surcharges, but nearly $1.2 million was actually paid, which means there was less revenue in total, but a much higher rate of collection. The memo also suggests it is important to keep the numbers in perspective.
“We understand that in most jurisdictions, the federal victim surcharge makes up a very small proportion of total revenues in comparison to the provincial surcharge,” an official wrote.
Still, the potential loss in revenue is something that Sue O’Sullivan, the federal ombudsman for victims of crime, had previously raised as a concern.
“Whatever changes are made cannot result in any significant loss to the funding to the provinces and territories, because this money goes to these programs that are essential to support victims in the aftermath of a crime,” she said last October.
O’Sullivan was unavailable to be interviewed for this story.
It should also be noted that Bill C-28 would not completely reverse the Conservative changes, instead presenting a middle ground that includes requiring offenders to apply for an exemption and not reducing the amount of the surcharge.