Controversy over victim surcharge surprised Ottawa

Judges’ revolt over mandatory fees unexpected

OTTAWA — The federal government never anticipated a backlash from judges after new legislation that came into force last fall forced them to impose victim-fine surcharges on convicted offenders, new documents suggest.

“The government believed that courts would apply the surcharges in all cases,” the Department of Justice said in a written response to a request from Liberal MP Irwin Cotler about the rationale behind the law that doubles victim-fine surcharges and makes them mandatory.

Within a month of the Increasing Offenders Accountability for Victims Act coming into force last October, the Attorney General of Ontario had appealed three cases where judges failed to abide by the letter or spirit of the new law. In two instances, judges did not impose the mandatory surcharge. In the third, the judge gave the offender 60 years to pay the fine.

There had been no appeals related to fines being improperly imposed in the decade before the new law came into effect despite the fact that fees were often waived.

“If the government had consulted adequately and effectively, then it might have foreseen the reaction of the judiciary and avoided what has ensued and now we’re wasting taxpayers money on appeals,” said Cotler, a former attorney general and federal justice minister. “The cost of the appeals will greatly exceed the amount of the surcharge.”

In response to a question about who was consulted in the development of the law, the Department of Justice said it had discussions “with provincial and territorial colleagues and the federal ombudsman for victims of crime.” Judges were not mentioned.

Some judges have complained the new law — which requires a 30 per cent surcharge on fines or fees of $100 or $200 depending on the seriousness of the offence if no fines are demanded — places an unfair burden on offenders who can’t pay.

There are reports of judges across the country refusing to order offenders to pay the fees or finding ways to make it impossible for authorities to collect the surcharge by giving impoverished criminals $1 fines (resulting in 30 cent surcharges) or giving offenders decades to pay off fees.

Before fines on convicted offenders were made mandatory, judges could waive fees if they felt they would cause “undue hardship” to offenders.

It’s a practice that appears to have been rampant. The Department of Justice notes that for the 2009-10 fiscal year — presumably the most recent year data are available — judges in all provinces and territories except Prince Edward Island waived fees for more than half of offenders. Data were not available for Manitoba or Quebec.

The revenue from victim-surcharge fees goes to provinces and territories to fund services for victims of crime.