Bill C-28: An Act to amend the Criminal Code (victim surcharge)

Tabled in the House of Commons, February 1st, 2017

Explanatory Note

The Minister of Justice has prepared this “Charter Statement” to help inform public and Parliamentary debate on Bill C-28, An Act to amend the Criminal Code (victim surcharge). One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling this Charter Statement, the Minister is sharing some of the key considerations that informed the review of Bill C-28 for consistency with the Charter. The Statement identifies Charter rights and freedoms that may potentially be engaged by the Bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits the Bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society.  This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of potential Charter considerations, recognizing that the Bill may change over the course of its passage through Parliament. Additional considerations relevant to the constitutionality of the Bill may also arise in the course of Parliamentary study. The Statement is not a legal opinion on the constitutionality of the Bill.

Charter Considerations

The Minister of Justice has examined Bill C-28, An Act to amend the Criminal Code (victim surcharge) for compliance with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill, including the importance of promoting values that underlie the Charter – notably liberty, equality, and the right not to be subjected to any cruel and unusual treatment or punishment.

What follows is a non-exhaustive discussion of the ways in which Bill C-28 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Charter considerations relating to the current victim surcharge provisions

The victim surcharge is an additional (monetary) penalty of a fixed amount, which is automatically imposed on adult offenders at the time of sentencing. Where an offender is sentenced for multiple offences under the Criminal Code and/or the Controlled Drugs and Substances Act at the same time, a victim surcharge is imposed for each offence on a cumulative basis.

Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. In the context of criminal sentencing, section 12 prohibits grossly disproportionate punishments. In certain circumstances, the current surcharge provisions may require judges to impose significant surcharge amounts, for example when multiple surcharges are cumulatively imposed on offenders in relation to certain administration of justice offences that do not cause harm to a victim. This has the potential to be found to constitute grossly disproportionate punishment.

Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the grounds of race or mental or physical disability. In certain circumstances, the surcharge provisions may have disproportionate impacts on members of marginalized groups in society, and these impacts have the potential to be found discriminatory.

Clause 2: Discretion for judges in certain circumstances

Bill C-28 would address these Charter considerations by specifically introducing judicial discretion in certain circumstances. For example, judges would have the discretion to exempt an offender from payment of the surcharge if the offender establishes that payment would cause “undue hardship”, as defined in the amended provisions. This will promote core values that underpin the Charter, including liberty, equality, and the right not to be subjected to any cruel and unusual punishment.

The most significant amendments for this purpose are those in Clause 2: the offence-based exception in subsection 737(1.1), and the “undue hardship” exemption established by subsections 737(5) to (6.1) inclusive.

Subsection 737(1.1) provides judges with the discretion to impose fewer surcharges than the number of offences that have been committed when the total amount of surcharges would be disproportionate and where some of the offences relate to failures to appear before a court or breaches of conditions of release when the breach did not cause a victim physical or emotional harm, property damage or economic loss.

Subsection 737(5) provides an offender with the right to apply to be exempted from having to pay a victim surcharge, and allows a judge to approve such an application where the offender has satisfied the judge that the payment would cause undue hardship.  Undue hardship in these circumstances is defined in subsection 737(6) and 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.

These amendments would provide judges with discretion that could be exercised in accordance with established sentencing principles and the Charter. Perhaps most importantly from a Charter perspective, these amendments would allow judges to consider the circumstances of individual offenders (including marginalized offenders) where the offender is being sentenced for certain administration of justice offences, or where the “undue hardship” exemption applies.

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