Canadian Debtors' Prisons, Victim Fine Surcharges, and Half Truths

The Conservative Government's tough on crime at all costs agenda took another step forward on October 24th with the coming into force of the Increasing Offenders' Accountability for Victims Act.  This act doubles victim fine surcharges and at the same time removes all judicial discretion to waive these fines.

Upon conviction an offender is liable to pay a victim fine surcharge.  Until October 24th the fine was fixed at $50 for a summery conviction offence and $100 for an indictable offence.  The judge was however given discretion to waive the fine its imposition would result in undue hardship.

These fines are now doubled.  There is no discretion for a judge to waive the fines - even where they would impose an undue hardship.  A good background post on this new legislation by Dyanoosh Youssefi can be found at the Huffington Post.

The Government justifies the new legislation as acting to increasing offender accountability, ultimately providing assistance and advancing the position of victims of crime. 

The problem is obvious.  For many people convicted of offences even $100 represents a significant amount of money.  The imposition of the surcharge - a debt which is now part of the sentence - can represent an undue hardship.  This is especially true when the offender is disadvantaged and already experiencing hardship.  A fine in these cases can actually impede rehabilitation, result in further incarceration, and may contribute to further offences.  This does not assist victims - it creates them.  

Recently while in court I witnessed a homeless man ordered to pay a $100 surcharge for a minor theft.  The monetary value of items the man stole was easily less than $100.  The man was motivated by addiction.  The theft was not planned.  The victim was a big box store.

The man I saw has no ability to pay a $100 surcharge but the surcharge has the ability to negatively effect the man for years to come.  Imposing a surcharge in a case like this does little to help victims.  In fact the draconian imposition of surcharges leave society less safe by further marginalizing those we should be assisting.

Importantly the victim fine surcharge forms part of the imposed sentence.  Non-payment of the fine can result in jail.

Don't fear said the Government.  There will be no Canadian debtors prison.  When the bill was introduced in Parliament Justice Minister Rob Nicholson (as he then was) made the following representations:

Those offenders who are truly not able to pay the victim surcharge without incurring hardship would have the option of participating in provincial and territorial fine option programs to discharge the amount owing. This is the second change proposed by Bill C-37.
Fine option programs will allow offenders to satisfy the victim surcharge by earning credits for work they perform in programs operated by the provinces or territories. This is in line with the philosophy of a victim surcharge, which seeks to make offenders accountable to victims of crime.

This provides cold comfort to destitute residence on Newfoundland, Ontario, and British Columbia.  These provinces do not have fine option programs

The most egregious aspect of Mr. Nicholson's representations is that he knew about the unavailability of provincial fine programs.  The Government's own Legislative Summary stated as much:

The provinces and territories that offer the fine option program under section 736 of the Code are Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Alberta, Saskatchewan, Manitoba, Yukon, Northwest Territories and Nunavut. Ontario and Newfoundland and Labrador do not offer this type of program to offenders.
Program eligibility criteria also differ among the provinces and territories. For example, the 2004 Statistics Canada publication entitled Community Corrections in Canada states that:
It should also be noted that not every provincial fine option program will allow an offender to dispose of a victim surcharge by participating such a program. For example, in Nova Scotia and New Brunswick, the offender may participate in a fine option program only after having paid the court costs and surcharge portion of his or her fine. Prince Edward Island’s Victims of Crime Act (the current version of which has been in force since 30 May 2012) goes even further by stating in subsection 9(3) that a “surcharge shall not be disposed of or satisfied by participation in a fine option program or by way of imprisonment in default of payment.”

Not every province has a fine option program.  Many provinces that do have such a program do not offer it for surcharges.  Mr. Nicholson knew this but did not say as much.    

At least the announcement concerning the coming into force of the legislation by Justice Minister Peter McKay was more honest: 

The victim surcharge will be mandatory for all offenders. Those who cannot pay will be able to discharge the victim surcharge by participating in a fine option program or through alternative mechanisms, where they exist.

The man I saw sentenced last week will not be able to take part in a fine option program.  His outstanding fine has the real potential to interfere with his rehabilitation.  Most importantly his liberty is at stake.  There is a possibility that he will be jailed for simply not being able to pay the surcharge.  

This does little for victims.  It certainly does not make victims safer.  

Perhaps in the weeks an months to come the man I saw in court will find stability; perhaps he will find a job; perhaps he will manage his addition; perhaps he will find stable housing; and perhaps all of that will be taken away when he is incarcerated for not being able to pay a surcharge. 

Sadly this legislation provides further evidence of the pervasiveness of an ideological approach to criminal justice policy.  The Conservative Party's apparent destain for judicial discretion, compassion and subtly is short sighted and misguided (I should note that it continue to astound me that the NDP supported the legislation).  

Contrary to the Government's claims the new victim surcharge provisions should not provide any comfort to victims.  Ironically, it may well in fact serve to perpetuate victimization.