In a previous entry, I discussed the imposition of a mandatory victim fine surcharge in reference to the conservative party’s tough on crime agenda. This particular entry is an exploration of how Alberta judges in particular have been reacting to the loss of their discretion to waive the surcharge. To recap, the victim fine surcharge used to be an automatic, but discretionary surcharge added to criminal sentences (usually an additional percentage of whatever fine was imposed).The surcharge was technically automatic in the absence of financial hardships faced by its imposition, but judges often (and sometimes habitually) waived the surcharge.
In 2013, bill C37 rendered the surcharge mandatory and in cases where the accused was sentenced to pay a fine, levied an additional 30%. Judges in some provinces have found it’s imposition counter to the principles of sentencing. Courts in Ontario, and British Columbia have ruled that the surcharge is a violation of an accused’s s 12 Charter right to be free from cruel and unusual punishment, and a violation of s 7 Charter right to life, liberty and security of person. The Alberta courts have taken a different, perhaps less aggressive approach to mandatory surcharges. Some Alberta judges have started to impose the victim surcharge fines with no time to pay, meaning that the accused will serve a day in custody for defaulting the payment of the fine. If the accused has served time in custody by the date of the sentence or is ordered to serve time in custody as his sentence, the additional day in jail is made concurrent with that time. Simply put, the additional day in custody for the victim surcharge overlaps the jail term an individual must serve for the actual offence.
In effect, these individuals do not spend additional time in jail for the surcharge, nor are they liable for the fine. Where an accused is not sentenced to a jail term, some Alberta Judges order that the accused’s appearance in court on the day of sentencing is to satisfy the day if default. Again the practical result of these orders is that the individual being sentenced does not have to pay the victim fine surcharge. Dealing with the victim surcharge in this way is effective for two reasons: the sentence served by the accused (whether it’s a fine or a term of imprisonment) isn’t actually inflated by the imposition of a surcharge, and unlike judgments that deem the surcharge unconstitutional, these judges don’t expose themselves and the accused to an inevitable Crown appeal.