Victims of Crime Research Digest
A Summary of Research into the Federal Victim Surcharge in New Brunswick and the Northwest Territories
By Lisa Warrilow, Research Analyst, and Susan McDonald, Sr. Research Officer, Research and Statistics Division, Department of Justice Canada
The Federal Victim Surcharge (FVS) is a monetary penalty imposed on offenders convicted or discharged of a Criminal Code offence or an offence under the Controlled Drugs and Substances Act. The underlying purpose of the FVS is to provide a rational link between an offender's crime and his or her accountability to the victim, as well as provide financial support to victim services. Provincial and territorial governments are responsible for collecting the surcharge, which is used to provide programs, services and assistance to victims of crime within their jurisdictions. This article summarizes two studies which were conducted to attempt to understand the local practices that have been adopted in relation to the federal victim surcharge legislation. The first study was completed in 2006 in New Brunswick (NB)and the second was conducted in the Northwest Territories (NWT) in 2007.
The FVS was first enacted in 1988 and proclaimed in 1989. The original provision required the judge to order the surcharge, while amendments in 1999 made the surcharge automatic. Under s.737(5) of the Criminal Code, judges retain discretion to waive the surcharge for reasons of hardship, and these reasons are to be documented. Currently, the federal surcharge is 15% of any fine imposed on the offender; or if no fine is imposed, $50 in the case of an offence punishable by summary conviction and $100 in the case of an offence punishable by indictment; or an increased surcharge, at the discretion of the judge, in appropriate circumstances.
Despite changes to the federal victim surcharge provisions in the Criminal Code in 1999 that were intended to increase revenues, funds collected from the surcharge continue to be well below expectations in many jurisdictions. In January 2005, the Attorney General of Manitoba proposed that the amount of the federal victim surcharge be increased from 15% on fines to 20%. It was agreed by federal, provincial, and territorial officials that more research was needed to understand how the surcharge was working in different jurisdictions and what the challenges were to increasing its potential for the generation of revenue.
Until these recent studies, there had been no comprehensive research on the federal victim surcharge in Canada.
Both studies utilized a combination of quantitative and qualitative methods, using data from three sources in the analysis. For both studies, the quantitative data came from two sources. First, an extract of data containing all convictions from 2000 to 2005 was obtained from the administrative databases of the respective court systems; second, data was obtained from a manual file review of a random sample of individual court files retrieved from each court registry in the province/territory. The qualitative data was obtained through semi-structured interviews with judges, lawyers, victim services workers, court managers and staff, and other key informants in the provincial/territorial criminal justice systems.
In New Brunswick, quantitative data were drawn from the New Brunswick Justice Information System from 2000-2005. On average, the Federal Victim Surcharge was waived on two thirds of eligible dispositions during that time period; hence, it was imposed on only one third of eligible dispositions. Where it was imposed, it was collected, on average, in just over four fifths (82.7%) of the cases. The waiver rates did vary based on the type of disposition and the nature of the offence. For example, the average waiver rate on fine dispositions is 25.2%, compared with non-fine dispositions related to summary (84.0%) and indictable (91.3%) offences.
Among offences, the lowest federal victim surcharge waiver rate is for driving under the influence (DUI) (26.0%), followed by drug convictions (61.6%) and non-violent property offences (72.8%). Interestingly, those crimes that involved an offence against a person consistently had the FVS waived at the highest rates across all regions. The data from the interviews with court personnel suggest that this appears to be a function of a "blanket" waiver strategy for custody orders, which are the typical sentence for crimes against a person. This highlights the disconnection between one of the primary purposes of the FVS-having the offender directly compensate their victim-and the court practices of imposing the FVS.
While all of the key informants were aware of all aspects of the FVS and a majority had a positive attitude towards the FVS, many expressed reservations with the current process.
There are marked variations in documentation procedures for federal victim surcharges betweenProvincial Court locations; however, consistent practices were documented within each of the 14 Provincial Court locations visited. When the Court waives the federal victim surcharge, it is required to provide reasons why it is not being imposed and to enter the reasons in the record of the proceedings. In 99% of the cases reviewed where the federal victim surcharge was waived (n=861), there was no documentation outlining the reasons for the waiver in the file, nor was there documentation indicating that the offender had established "to the satisfaction of the court that undue hardship.would result" (s.737(5)) and was therefore exempt from the federal victim surcharge.
All judges interviewed consistently cited the offender's inability to pay as the reason for waiving the surcharge. Judges expressed a desire for increased feedback from Victim Services and Fine Options as they are often not made aware of the effectiveness of these programs.
The sole enforcement strategy in place in New Brunswick is incarceration according to the current default formula whereby an amount equal to eight times the provincial minimum wage can be satisfied for each day spent in jail. If, for example, an offender failed to pay a $50 surcharge, this would only result in a single day's incarceration. This means that the offender serves no sentence for default as the process for one day is to admit and release at the same time.
All key informants interviewed agreed the current default formula in the Criminal Code, whereby an amount equal to eight times the provincial minimum wage can be satisfied for each day spent in jail, was not a meaningful consequence for offenders who do not satisfy their imposed federal victim surcharge.
The data clearly show that the anticipated revenue to be generated in New Brunswick from the 1999 amendments to the Criminal Code provisions relating to the automatic imposition of the federal victim surcharge has not been realized.
The situation in the NWT with regards to the federal victim surcharge is not unlike that uncovered in New Brunswick. Analysis of the data indicates high waiver rates, particularly for those cases where a custodial sentence was imposed. Also, data indicates that offenders who commit crimes that typically do not involve a victim (for example, driving while impaired) have to pay the federal victim surcharge more often than those offenders who commit a crime against a victim (for example, sexual assault). This goes against the philosophy of the surcharge legislation, which is intended to increase accountability of the offender to the victim. In addition, analysis of the FACTS data on waivers and collection indicates that revenue shortfalls are due more to high waiver rates than to low collection. In fact, collection of the surcharge in the NWT is fairly high at 85% across the territory. This is true even for incarcerations, which have a collection rate of 75%. This finding is relevant given the perception among many judges that offenders serving a custodial sentence are unable to afford a surcharge.
Specifically, the FACTS data revealed waiver and collection rates broken down by disposition, offence category, and whether or not a victim was identified. In the NWT a total of 7,323 or 69.5% of 10,534 convictions had the federal victim surcharge waived in the 2000-2005 time period. By region, Yellowknife had the highest waiver rate at 72.5%, followed by Inuvik, at 67.7% and Hay River at 65.6%. Custodial sentences, such as intermittent jail and incarceration had very high waiver rates at 83% and 94% respectively, territory-wide. In contrast, fines had the lowest rate of waiver at 29% at the territorial level.
While waiver rates remain high regardless of whether or not a victim was identified, all three regions had higher waiver rates for cases that had victims than for those that did not. This is particularly true in Yellowknife, where 80% of cases where a victim was identified had the federal victim surcharge waived, which is 13% higher than cases with no victim.
The manual file review of a random sample of 523 court files sought to reveal the documentation practices in the three court registries. However, due to data quality issues, the data is not reported quantitatively. A qualitative review of the coding sheets revealed that the NWT has proper documentation policies in place in the Territorial courts. In many cases, however, these practices are not being followed because the surcharge is not always addressed in court.
The key informant interviews further illuminated the federal victim surcharge regime in the NWT. A majority of informants (71%), including the judges, had a positive view of the federal victim surcharge. And, while some informants praised the surcharge for its focus on victims, others cautioned that although it is a good idea in theory, its potential is not being realized due to low enforcement. There was divergence among informants when asked if the FVS was a meaningful consequence. Many of those who felt the surcharge was not a meaningful consequence felt that this is due to the lack of connection made by the offender to the victim and a general lack of awareness of the purpose of the surcharge on the part of the offender.
While all informants were aware of the surcharge, there was generally a sense that the Government of the NWT had done little to increase knowledge of the surcharge provisions among professionals and offenders. There was also some uncertainty about where the money from the FVS goes, although for the most part, people either knew or guessed correctly that the money goes towards victims programs. Perhaps due to this lack of awareness, a majority of informants expressed an interest in obtaining more information about the FVS and about how the revenue is used.
Slightly more than half of the respondents agreed with a symbolic increase in the amount of the FVS, although most respondents, both those who felt the surcharge should be increased and those who felt it should not, felt that the focus should be on imposition and enforcement at the current rate, rather than increasing the monetary amount of the surcharge. When asked about the automatic nature of the surcharge, more than half felt that the surcharge is not being applied automatically. In fact, the perception is that the tendency is towards an automatic waiver for custodial sentences and an automatic imposition for fines.
According to key informants, a new policy directive which emerged out of recent case law has made default time as a penalty for non-payment more difficult for the courts to impose. In fact, default time as a penalty for non-payment is not well supported among the individuals interviewed for this study. Only one informant agreed that default time is a meaningful consequence for non-payment of the surcharge; the remainder either thought it was not a meaningful consequence or felt that it was only meaningful in certain circumstances. Most believe that community service orders, license restrictions, and fine option programs are more suitable enforcement measures.
The findings from these two studies indicate that the purpose underlying the Federal Victim Surcharge-to provide a rational link between an offender's crime and his or her accountability to the victim as well as to provide financial support to victim services-is not being realized in New Brunswick or the Northwest Territories. Offenders of serious crimes, offenders who receive a custodial sentence and offenders who have been convicted of crimes involving victims are all having the Federal Victim Surcharge waived.
The Criminal Code was amended in 1999 to provide the provinces and territories with more federal surcharge revenue to devote to services for victims of crime. In New Brunswick, the federal surcharge revenue has remained at the same level as before the amendments.
Discussion and dialogue with interested stakeholders will continue, as will more research with other jurisdictions to further explore the issues identified in this research. These studies highlight the importance and challenges of consistent implementation of Criminal Code provisions at the local court level.
-  Full reports on these studies are forthcoming. See M. A. Law and S. M. Sullivan, Federal Victim Surcharge in New Brunswick: An Operational Review (Ottawa: Department of Justice Canada, 2006) and L. Warrilow, Federal Victim Surcharge in the Northwest Territories(Ottawa: Department of Justice Canada, 2007).
-  There were a total of 61,714 eligible dispositions drawn from the database.
-  FACTS is the court information management system.
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