Penticton lawyers say there’s some confusion over if, when and how victim surcharge fees are mandated by courts, with conflicting rulings on the controversial fines across Canada. Dustin Godfrey/Western News

Confusion surrounds controversial victim surcharge fees

Intended to fine criminals and give proceeds to victim services, critics say it can fuel crime

When Colt Wilson leaves jail in less than two-and-a-half years, he’ll have to pay over $1,000 into the provincial justice system, due to a mandatory fee that critics say can fuel more petty crime.

In a sentencing hearing at the end of August, Wilson was handed a three-and-a-half year sentence for robbing a man who had been kidnapped, along with another 300 days for other charges, but with credit for time served Wilson has less than two-and-a-half years left to serve in jail.

After hearing Wilson’s sentence, defence lawyer James Pennington asked the judge to waive the victim surcharge fee — not an uncommon request in Penticton’s courthouse.

Related: Robbing kidnapped man nets 3.5 years

A victim surcharge fee has been the source of some controversy in the Canadian legal community. It is a fee imposed on any punishable offence in Canada, from a driving fine to an assault, which is intended to go toward funding services for victims of crime.

A document posted to the B.C. government’s website indicates the victim surcharge special account gets $11 million annually, with the bulk of that coming from traffic fines.

From that fund, $2 million a year goes to the B.C. Neurotrauma Fund; nearly $10 million goes to the Victim Services and Crime Prevention Branch in the Ministry of Public Safety and Solicitor General, toward victim service programs and just under $1.7 million goes to the Prosecution Services Branch to ensure compliance with the Victims of Crime Act.

In 2013, the federal government, under the leadership of the Conservative Party, amended Section 737 of the Criminal Code to remove a subsection that allowed for judges’ discretion on whether or not to impose the surcharge.

“Some judges have said, ‘look, this guy doesn’t have the pot to piss in or the window to throw it out of. How is he going to come up with eight, 900 bucks. It’s ludicrous, so I’m waiving it,’” Pennington said of the attitude before the amendment.

He said that attitude never really changed after the Criminal Code amendment and Crown lawyers would often take no position on waiving the fees, allowing the judge to make the decision.

But in Wilson’s sentencing in August, there was a change in tone from the judge and Crown.

“I can only do that with the consent of the Crown. I understand their instructions are not to consent to that,” Judge Gregory Koturbash said.

“That’s what I’ve been told in the last week,” Vandersluys agreed.

Asked to elaborate on Vandersluys’s statement, Crown spokesperson Alisia Adams said in an email there have been no changes to the Crown’s policy, but indicated Vandersluys referenced an “informational legal update that the B.C. Prosecution Service distributes from time to time.”

A freedom-of-information request filed by the Western News for that informational update, as well as for emails to and from Vandersluys regarding the victim surcharge came up empty.

Due to conflicting court decisions throughout Canada about the constitutionality of the victim surcharge fee, Adams said Crown lawyers “consider each situation on a case-by-case basis.”

Defence lawyer Don Skogstad said there’s some confusion among the legal community about how, if and when the fees are imposed.

“I tried clarifying because we want to advise our clients,” he said.

“Right now, if I did contest it, it would depend on what day, what Crown, what city I was in, as to whether the Crown would take a different position and the judge would have to decide or follow Crown.”

In Penticton, he said Crown lawyers have indicated they are more lenient about it but if one travels an hour north to Kelowna’s courthouse, he believes he won’t see leniency from local Crown lawyers.

But the Crown’s statement also said judges do not have the authority to waive the victim surcharge.

“I know judges are very uncomfortable with imposing this kind of condition on a newly-released individual,” defence lawyer Don Skogstad said, adding Penticton’s newest judge has indicated she is willing to waive the charge.

It’s not an easy issue to drum up support for — the case of Wilson, having robbed a man who was unlawfully in the custody of another man, is not a particularly sympathetic one.

But Skogstad believes the mandatory surcharge should be a concern for people, as he believes it can be counterproductive to fighting crime to mandate that a recently incarcerated individual pay up hundreds of dollars.

“When you take young people and you give them mandatory imprisonment … you’re making a class of people unemployable, so they become and remain criminals,” Skogstad said. “So this idea that this is all going to help crime, it’s works exactly the opposite.”

For most people faced with the fines, Skogstad suggested a person struggling to gain employment may turn to darker avenues to pay off the fines.

“I hope it’s not your house that he breaks into,” Skogstad said.

The issue hasn’t yet made it to the Supreme Court of Canada, but several lawyers have told the Western News they anticipate it will fairly soon.

Though the Liberal Party has said it is interested in revisiting the issue of victim surcharge fees, both Pennington and Skogstad said they expect the government to let the courts make that decision — it is not seen as a politically advantageous move.

In B.C., the provincial government has made it mandatory that victim surcharge fees, which can rack up to over $1,000 be paid within 60 days of their release from jail. But Pennington said judges have found some ways to ease the burden — offer extensions on that timeline.

“I have heard of some judges, down at the coast, I believe, giving somebody 10 years to pay the damn thing,” Pennington said.

In Penticton, he said judges typically give people about a year to pay their fees.

Koturbash expressed a bit of hope for Wilson, a man with two children, to get out of crime. And he may be one of the lucky ones — his girlfriend, in court during his sentencing hearing, said she would try to make some payments while he was in jail.

“We’ll figure it out, Colt.”


@dustinrgodfrey

dustin.godfrey@pentictonwesternnews.com

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