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A case affecting the ability of people of low income to apply for a Record Suspension will be heard in the Supreme Court of Canada this month. The mandatory victim surcharge can hold many Canadians back.
A Record Suspension might not be the primary motivator for Alex Boudreault, the plaintiff in the case, but if he is successful, it may reduce the burden of a criminal record for others, especially those of limited means.
Boudreault is fighting a $1,400 victim surcharge. A victim surcharge is a fee that is ordered against convicted persons, which goes to fund provincial victim services. While the goal of the victim surcharge is admirable in general, the previous government introduced changes in 2013, that made the charge disproportionate for Canada’s poorest citizens.
If people can’t afford to pay the fee, the lasting impact of their punishment will follow them until they can pay it. They could be rearrested. They cannot get drivers' licences or government benefits. Not only can they not apply for a Record Suspension, but the five- or ten-year waiting period does not even start until after they pay the victim surcharge.
Thus, a person already struggling with poverty may not be able to find a job in order to pay off fines and even then, they may continue to face unemployment due to the fact that many employers currently require a record check for even entry-level jobs such as kitchen worker or cashier.
If they ever become eligible for a Record Suspension, the fee is $631. Many people don’t realize that they owe a victim surcharge. Sometimes they are unrepresented or their lawyer doesn’t tell them they owe the fee. Sometimes they are dealing with mental health or addictions issues at the time that the decision is ordered. Often the courts don’t follow up with fine and surcharge collection because they are over-burdened or feel the cost of attempting to enforce the surcharge would be greater than the amount collected.
What changes did the government make to the victim surcharge?
Although the charge has been around for a long time, the government changed the law to make it tougher. It became mandatory for judges to lay the charge, which is a minimum of:
- Summary $100, when no fine is ordered
- Indictable $200, when no fine is ordered
- Thirty percent of ordered fines
Judges could also award higher surcharges if the circumstances called for it. In addition, the fee is cumulative, so a person convicted of multiple offences stemming from the same incident would need to pay hundreds or thousands of dollars even at the minimum level.
Many judges objected to this on the grounds that the fee was disproportionate for those that could not afford it. In fact, some even refused to order it. The only option for waiving the fee was to send the offender to a community service program, but not all provinces had these programs.
The mandatory fee was called unconstitutional in several different provincial courts, including a case involving a homeless man who owed $200 in BC. Similarly, another case in Ontario also involved a “virtually homeless” person living on the social assistance street allowance. In other cases, where the fee was challenged as unconstitutional, it was ultimately upheld.
In 2016, the Liberal government proposed a bill to make some exceptions, including allowing the fee to be waived when the person could not pay.
The Supreme Court of Canada case may decide the issue once and for all. It is scheduled for April 17 and 18. Many of our clients are affected by long waits and unpaid fines and surcharges. Often they learn about the fines once they receive their court documents as part of the application process. At this point they pay the fee and the wait-time starts at the beginning even if it has been many years since the offence. If you think that pardons should be fairer in order to help citizens get back on track, please consider signing our petition.
If you would like to get started with a Record Suspension application, contact us today for a free consultation at 1-866-972-7366.
