Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Mandatory victim surcharges unconstitutional

— By Susan Kootnekoff

Last month, the Supreme Court of Canada ruled in R. v. Boudreault that section 737 of the Criminal Code was “of no force and effect immediately.”

The provision provided for a mandatory victim surcharge, in addition to the sentence already imposed.

It was introduced in 1989 in an attempt to increase accountability of offenders and offset the cost of funding victims’ services.

Until 2013, judges could waive the surcharge if the offender was unable to pay.

Then, as part of its tough on crime agenda, the former Conservative government made the surcharge mandatory.

The surcharge was 30 per cent of any fine imposed. If no fine was imposed, it was $100 or $200 for each offence, depending on the type of offence.

For multiple offences, it could quickly add up.

Once levied, an individual would remain indebted to the state until the amount was paid in full, although a court could allow more time to pay.

The mandatory nature of the charge was controversial. One Ontario judge had called it a “tax on broken souls.” Some judges found creative ways of substantially reducing the fine, or would allow extended payment periods.

The offenders who challenged the constitutionality of the surcharge all lived in serious poverty and faced addiction, mental illness or disability.

They made a number of arguments, including that the surcharge was cruel and unusual punishment, contrary to section 12 of the Canadian Charter of Rights and Freedoms.

Section 12 states, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

In a 7:2 decision, the Supreme Court of Canada agreed with them. It ruled that the mandatory victim surcharge infringes section 12, and was not saved by section one of the Charter.

The court observed that many involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized.

When unable to pay the surcharge, they essentially faced an indeterminate sentence. As long as they could not pay, they could be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies.

In effect, it created a two-tiered system, which treated impoverished offenders more harshly than those with access to the necessary funds. An inability to pay this debt further stigmatized already marginalized members of society.

This potentially indeterminate punishment resulted in a public shaming of disadvantaged offenders. The surcharge was held to be grossly disproportionate to what would otherwise be a fit sentence, “outrage the standards of decency”, and to be “abhorrent and intolerable.”

“Put simply, in our free and democratic society, it is cruel and it is unusual.”

The court left open the possibility that individuals already subject to surcharges could potentially obtain relief from the unconstitutional effects of the surcharge.

This decision prompts questions regarding constitutional validity of other mandatory minimum sentences.

We will see whether another non-mandatory surcharge is introduced. Regardless, this much is clear. Impecuious offenders will no longer be mandatorily dogged for years by collection efforts, under an indefinite threat of imprisonment for failing to pay the surcharge.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

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