The Federal Victim Surcharge in Saskatchewan

Highlights

Executive Summary

The Federal Victim Surcharge (FVS), implemented in 1989, is an imposed payment on an offender who is convicted of any Criminal Code offence, or a Controlled Drugs and Substances Act offence, as well as on individuals who receive an absolute or conditional discharge. The goals of the FVS are to make offenders accountable to victims and to generate revenue for victim services. In many jurisdictions, funds collected from the imposition of the FVS are the primary source of revenue for victim services.

In order to address concerns regarding the implementation of the FVS and the lower than anticipated revenue collected from the 1989 provisions, the surcharge provisions in s. 737 of the Criminal Code were revised in 1999 based on recommendations made by the Federal Provincial Territorial Working Group (FPTWG) on Victims of Crime. The amended provisions require that a mandatory minimum amount be automatically imposed on all cases unless the offender can prove that paying the surcharge would result in undue hardship to either her/himself or her/his dependents (s.737(5)). The court must provide reasons for waiving the surcharge and state them in the record of proceedings (s.737 (6)).

The anticipated revenue to be generated from the 1999 amendments has not been realized, however. In 2005, the Attorney General of Manitoba proposed an increase in the FVS to increase revenue. Federal, provincial and territorial officials agreed that research was needed to better understand how the current provision is working. Research has already been conducted in New Brunswick and the Northwest Territories. As such, this study aims to build on what has already been learned and to gain a greater understanding of how the FVS is working in Saskatchewan.

The seven main research questions included were:

  1. What are the waiver rates?
  2. What reasons are provided for the waiver(s)?
  3. How is the FVS documented in court files?
  4. What are the collection rates?
  5. What are the enforcement strategies in Saskatchewan and what, if any, are the consequences of non-compliance?
  6. What other options could be considered for collection?
  7. Why has the anticipated revenue to be generated from the 1999 amendments to the Criminal Code provisions related to the FVS not been realized?

Methodology

This study used a mixed-methods approach with quantitative data from Saskatchewan’s provincial court database for fiscal years 2002/03-2006/07 to determine aggregate collection rates. Waiver rates and factors influencing the waiver were analyzed based on data provided by the Canadian Centre for Justice Statistics (n=72,915, 2002/03-2006/07). A file review of 50 court files from the Regina courthouse was also conducted in order to determine if and how the imposition/waiver and reasons for the waiver were recorded. Qualitative data analysis involved an auditory review of 143 sentencing hearings carried out in Regina from December 2007 to January 2008. Further, interviews with 38 criminal justice stakeholders, including Crown prosecutors, defence attorneys, court staff, programs/policy staff and probation officers, were also conducted between August and October 2008. The respondents were interviewed from four court locations: Regina, Saskatoon, Yorkton and Meadow Lake.

Study Findings

Waiver and Collection Rates

Data provided by the Canadian Centre for Justice Statistics revealed that the average FVS waiver rate was 73% across the province. The highest waiver rate was in La Ronge, at 87%, and the lowest waiver rate was in Estevan, at 46%. Offences against Property had the highest waiver rate at 85% and Criminal Code traffic offences had the lowest waiver rate, at approximately 50%. Dispositions resulting in the custody of the accused had the highest waiver rates at 93% and fines had the lowest waiver rates, at 53%. Data provided by the provincial court database revealed that the average collection rate for the five years was approximately 82%. In 2003/04 however, there was a surplus in monies collected and when this year is excluded from the calculation, the average collection rate dropped to 69%.

Reasons for Waiver and Imposition

A file review of 50 provincial court files indicated that the FVS was not addressed in the majority (92%) of the cases. The FVS was waived in 65% of the cases. Hardship was provided as the reason for the waiver and the waiver was documented in the Endorsement in all these cases. The imposition of the FVS was documented in several places, including on the Notice of Fine and Surcharge and on the Endorsement.

The auditory review of 143 sentencing hearings revealed that approximately three out of four sentencing cases resulted in a waiver. Judges in Regina never refused nor questioned a request to waive the FVS by defence and the evidence for “undue hardship” was representation by legal aid or being unemployed. The surcharge was more likely to be imposed when the offender was employed, when the offender was charged with drinking and driving and possession or distribution of narcotics, and when fines were imposed as penalty.

Perspectives of Criminal Justice Stakeholders

Interviews with criminal justice stakeholders indicated they were all aware of the FVS and agreed with its purpose, however there was little awareness of where the revenue actually went. The stakeholders agreed that offenders do not have a good understanding of the surcharge and very few saw it as a meaningful consequence for the offender because there were no repercussions for non-payment. The interviews also revealed that the process of imposition differed between court locations and reflected the different approaches taken by the judges in these locations. Many probation officers also noted that they do not consider the FVS in their Pre-Sentence Reports.  The respondents provided several recommendations with regard to ensuring payment of the surcharge, including having the offender work off the FVS, withholding parole until the FVS is paid, using a collection agency and the Refund Set-Off Program with the Canada Revenue Agency. All of the respondents agreed that where there is a true inability to pay, that the FVS should be waived.

Conclusions

This study found that waiver rates in Saskatchewan are high on average, although they vary considerably depending on court location. FVS waiver rates are also higher for custodial dispositions than for fine dispositions. It is clear from the findings that the primary reason that potential revenue from the 1999 amendments has not been realized is the high waiver rates, rather than low collection rates. Interviews with criminal justice stakeholders also revealed that greater awareness about the surcharge is warranted and that few view the FVS as a meaningful consequence for offenders.

The results of this study suggest that current efforts to reduce waiver rates should be continued by challenging offenders’ uncontested inability to pay; by ensuring full financial information is presented to the court in Pre-Sentence Reports by probation officers; and by appealing trial decisions where appropriate. Judges, Crown prosecutors, defence counsel and probation officers all have a significant role to play in ensuring the imposition of the FVS.

Key Learnings

  1. The data showed that it will be important to increase awareness, for all players in the criminal justice system, but especially judiciary, defence and probation officers, of the importance of FVS in terms of funding specific programs. A better understanding of the role of the programs and the use of the money generated from the funds could make a difference in terms of the FVS being a meaningful consequence.
  2. In addition, increased involvement of criminal justice professionals at imposition and enforcement of the FVS would likely result in lower waiver rates. Probation officers, defence counsel and Crown prosecutors could all consider the importance of the FVS and ensure that the FVS is addressed.
  3. It will be important to establish a consequence for non-payment of the FVS and to examine enforcement of all monetary penalties, including restitution, provincial and federal surcharge and fines to determine whether there are consistent approaches to enforcement and if there are best practices in terms of enforcement of monetary penalties.
  4. An improvement in the data management system to track individual payments of FVS would increase understanding of what is occurring in terms of FVS collection.
  5. When the opportunity arises, it will be important to appeal appropriate cases wherein the offender may have the ability to pay the FVS.
  6. Finally, it will also be important to monitor the recently implemented Canada Revenue
Agency Refund Set-Off Program to understand its effectiveness and to determine if this program could be a best practice for collection.