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Judges waiving federal victim surcharge

Article by: Janice Tibbetts, Canwest News Service Published: Monday, July 14, 2008
– OTTAWA – Judges are routinely waiving a federal victim surcharge they are supposed to levy against lawbreakers to help support crime victims, says a study conducted in New Brunswick.
The Criminal Code dictates that the fine is to be imposed unless an offender can prove undue hardship, but the study found the fee was waived in two-thirds of 62,000 cases over five years, costing the province millions of dollars in lost revenue for victims.
“Funds collected from the surcharge continue to be well below expectations,” says the report, posted recently on the federal Justice Department Web site.
The study was conducted to determine why victim funds have stagnated since the early 1990s, despite a 1999 Criminal Code change that made surcharge collection all but mandatory.
The lead author is Moira Law, a professor at the Centre for Criminal Justice Studies at the University of New Brunswick.
“It appears that mere assertions of an inability to pay by offenders or perceptions by judges that the offender cannot pay are sufficient to prove undue hardship,” the report says.
The purpose of the surcharge, which has been on the books since 1989, is to fund programs and to make offenders think about restitution toward victims.
The fee goes into a victim services fund in the province in which it is collected and the money is used for such things as counselling and individual compensation.
The fee is 15% of the fine imposed on an offender for breaking the law, which typically ranges from about $8 for petty crimes to $100 or more for drinking and driving. If the crime merits jail time instead of a fine, offenders must pay a set amount of $50 or $100, depending on the offence.
Almost 20,000 surcharges were imposed in New Brunswick between 2000 and 2005, raising $1.3-million for victim services, which fell about $3-million short of the money that could have been raised if judges had not waived the fee, the study says.
In Ontario, in 2001-02 alone, the province could have collected a potential $5.4-million, but instead took in $1.2-million, according to a table that shows revenue shortfalls in almost every province.
“It’s a huge disappointment,” said Steve Sullivan, the federal ombudsman for crime victims. “It has had a significant impact on victim services across the country.”
Victim compensation, for instance, has been scaled back in several provinces, Mr. Sullivan said.
Darren Eke, a spokesman for federal Justice Minister Rob Nicholson, said judges should have to explain themselves when they decide against imposing the fee.
“The reasons for a finding of undue hardship need to be clearly stated in the record of proceedings,” Mr. Eke said in an e-mail. “The government expects that the letter of the law be followed in all cases.”
While judges are supposed to justify their decisions for waiving charges, the information was not included in 99% of 861 court files that were reviewed for the study.
The authors interviewed almost two dozen “informants” in the justice system, including several judges, to gauge their attitudes toward the surcharge.
While the majority were positive, it was denounced by some as a “tax grab” and stakeholders unanimously agreed that offenders make no connection between the surcharge and victim restitution.
Some judges also felt the surcharge was yet another burden on impoverished offenders who simply do not have the means to pay and are “victims themselves of wretched circumstances,” the report says.
The study found that there is a “blanket” waiver on fines for offenders who are sentenced to incarceration, when they are the ones who have probably caused the most harm to victims. The highest rate of surcharge imposition was for driving while impaired.
“The people who are creating the most harm aren’t contributing to victim services at all,” said Mr. Sullivan, who suggested that offenders should be put on payment plans for the surcharge, including those who earn wages while incarcerated.
The study also looked at imposition of the surcharge in the Northwest Territories between 2000 and 2005 and found it was waived 70% of the time.