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The Federal Victim Fine Surcharge (FVFS), as set out in s.737 of the Criminal Code of Canada, is a monetary surcharge imposed on offenders in addition to any other punishment imposed at the time of sentencing. It was established to help fund services that assist the victims of crime. It is not paid directly to the victim.
The FVFS was first enacted in Canada in 1989. It has been amended several times. Previous to recent amendments, the amount of the FVFS was $50 for summary conviction offences and $100 for indictable offences, or 15% of any fine imposed on an offender as a sentence. The FVFS could be waived for impoverished offenders at the judge’s discretion.
As of October 24th, 2013, with the passing of Bill C-37, Increasing Offenders Accountability for Victim Act, the FVSF became mandatory; as well, the fine was increased to $100 for summary offences and $200 for indictable offences, or 30% of any fine imposed on an offender as a sentence. Judges no longer have the option to waive the FVFS for destitute offenders.
In 1989, with the introduction of the FVFS, federal funding of victim services was eliminated. As well, provincial-level funding for victim services was either eliminated or cut. It was expected that funds collected from the FVFS would amount to enough to fund victim services. However, the implementation of the FVFS did not generate as much revenue as was expected as judges regularly waived the fine.
The high rate at which judges have waived the FVFS suggests that they have viewed it as an unsuitable consequence of conviction for offenders.
The pervasive waiving of the FVFS in combination with the government funding cuts for victim services has produced a void of funding where funding is necessary. The need for victim services is unquestionable. However, it is questionable whether it is ethical or constitutional for offenders to be charged with producing these funds. It is notable that in Ontario, more than 80% of the offences where the victim surcharge is applied are “victimless” offences.
The first official challenge to the constitutionality of the FVFS was R. v. Michael. On July 31 '2014 Ontario Court Justice David Paciocco struck down the mandatory FVFS as unconstitutional. With his ruling, he found the FVFS to be in violation of section 12 of the Canadian Charter of Rights and Freedoms, as it amounted to cruel and unusual punishment for impoverished offenders.
In his ruling Paciocco expressed sentiments that are widely echoed in the legal community: “This is a crushing amount for him (Mr. Michael), beyond his foreseeable means. It is a sum that, in relative hardship, is many multiples of what a moneyed offender would have to pay…Simply put, Mr. Michael is being treated more harshly because of his poverty than someone who is wealthy.” His decision was considered a victory for the rights of impoverished accused individuals.
On April 10th, 2015 an Ontario Superior Court judge, Justice Bruce Glass, upheld the constitutionality of the VFS. He maintains that the VFS is neither a fine nor a punishment but simply a consequence of a conviction.
He expressed the opinion that, even if the VFS could be considered a fine or punishment, it would not be “grossly disproportionate” in the case before him. This ruling is disputable. One of the offenders challenging the surcharge is a legally blind recovering alcoholic suffering from depression and bipolar disorder. She is of extremely meagre means and struggles to pay for the basic costs of living. This decision was silent about R. v. Michael.
The VFS will likely require an appellate review as a result of these conflicting rulings. Considering the problematic moral and legal implications of the VFS, it is clear that further amendments are required. The issue of constitutionality remains open pending an appeal court ruling.
“Given the number of different courts across the country which have now declared the victim surcharge amendments to be unconstitutional, it is time for the federal government to rewrite this law in a manner that complies with Charter standards,” Konyer, president of the Defence Counsel Association of Ottawa
As suggested by Justice Paciocco, one possible solution is to re-establish the VFS as discretionary and for the Crown to more regularly appeal or seek review of decisions where the victim surcharge is inappropriately waived.
The VFS could be graded to the level of a person’s income rather than a standard percentage applied to everyone
Properly establish work service programs that would allow the offenders to work off the VFS. Federal/Provincial funding could be re-established to fund victim services.
The VFS as a way to fund victim services is essentially flawed. It is arguable that the Federal Government is failing the victims of crime by designing a flawed system to fund victim services, where the responsibility of funding these services falls on individuals largely unable to pay. Those against the VFS maintain that it is unconstitutional, based on s. 12 of the Charter, being a cruel and unusual punishment.
