R. v. Flaro, 2014 ONCJ 2
ONTARIO COURT OF JUSTICE
R. v. Martin Flaro;
R. v. Jennifer Travis;
R. v. Mark Bodin;
R. v. Allan Ashton;
R. v. B.T.
REASONS FOR SENTENCE – VICTIM FINE SURCHARGE
SCHNALL, J.:
On October 24th, 2013, amendments to S. 737 of The Criminal Code of Canada came into effect.
Since that date, I have held on a number of occasions that the amendments constitute a breach of rights under s. 12 and 7, of the Charter of Rights and Freedoms (the Charter) and are thus unconstitutional.
S. 737 deals with the imposition of a victim fine surcharge (“VFS”).
The amendments removed from the judge the ability to exercise judicial discretion in the imposition of the VFS; increased the percentage calculation of the VFS on a fine, from 15% to 30%; and increased the quantum of the VFS to be imposed where there was no fine, from $50.00, to $100.00 for a summary offence, and $200.00 for an offence proceeded with by indictment.
Time to pay:
The time when the VFS is payable is the same as that for a fine imposed.
However, where no fine is imposed, the egregious consequences of these mandatory provisions are exacerbated by the provisions of the Order in Council (Ontario), dated December 8, 1999, made pursuant to s. 737(4). This provides that where no fine is imposed, the VFS for a summary conviction offence shall be payable within 30 days from the date it is imposed; the VFS imposed for an offence punishable by indictment shall be payable within 60 days after the surcharge is imposed. No consideration is given as to whether these time frames are reasonable in the circumstances of an individual offender.
The amended section 737 now reads as follows:
Victim surcharge
- (1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Marginal note :Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is
(a) 30 per cent of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.
Marginal note: Time for payment