The Federal Victim Surcharge in Saskatchewan

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3. Findings

The findings are presented by theme in order to answer the key research questions. As such, data from different sources were used to answer questions as fully as possible.

3.1 Imposition and Waiver Rates

In order to answer the question, How often is the FVS waived? we examined data obtained through a special request to the Canadian Centre for Justice Statistics.

Of the total 72,915 convictions for which data were available for the fiscal years 2002/03 - 2006/07,^[19] almost three quarters (73% or 53,318) of the convictions had the FVS waived. The waiver rate differed by court location, with the highest waiver rate of 87% found in La Ronge, followed by 82% in Meadow Lake and Saskatoon. Estevan had the lowest waiver rate, at 46%, followed by Yorkton and Swift Current, where rates were at 52% and 59%, respectively. Waiver rates for each location are presented in the Appendix A.^[20]

In the following tables, the waiver rates are presented by disposition type, offence type and gender of the accused. Table 2 highlights the waiver rates by disposition type. Across the province, dispositions resulting in custody had the highest waiver rates at 93%, while conditional sentences had waiver rates of around 83%. Fines had the lowest waiver rates, at 53% across the province.

Table 2: Federal Victim Surcharge waiver rates by disposition, 2002/03-2006/07

Disposition	Total # Sentenced	% of Total	Total FVS Waived	FVS Waiver Rate
Custody	17,961	25%	16,787	93%
Conditional Sentence	5,536	8%	4,590	83%
Probation	16,354	22%	12,515	77%
Fine	27,292	37%	14,124	53%
Other[21]	5,772	8%	5,302	92%
Total	72,915	100%	53,318	73%

Source: Canadian Centre for Justice Statistics

Waiver rates were also examined with regard to the type of offence (Table 3). The waiver rate for most offences ranges from 76% to 85%, the highest rate being for offences against property. Offences for which a victim is involved (i.e., offences against the person) also had a high waiver rate (79%). Criminal Code traffic offences had the lowest waiver rate, at 50%.

Table 3: Federal Victim Surcharge waiver rates by most serious offence, 2002/03-2006/07

Offence	Total # Sentenced	% of Total	Total FVS Waived	FVS Waiver Rate
Offences Against Property[22]	15,634	21%	13,356	85%
Offences Against Person[23]	12,974	18%	10,229	79%
Offences Against the Administration of Justice[24]	16,081	22%	12,718	79%
Other Criminal Code Offences[25]	4,531	6%	3,555	78%
Other Federal Statute Offences[26]	6,170	9%	4,718	76%
Criminal Code Traffic Offences[27]	17,525	24%	8,742	50%
Total	72,915	100%	53,318	73%

Source: Canadian Centre for Justice Statistics

Waiver rates were also examined by specific offence (Table 4). Waiver rates were highest for homicide and attempted murder, at 100%. Waiver rates were also high for robbery (94%), being unlawfully at large (92%) and breaking and entering (91%). The lowest waiver rates were seen in drug possession (59%) and impaired driving cases (43%).

Table 4: Federal Victim Surcharge waiver rates by specific offence, 2002/03-2006/07

Offence	Total # Sentenced	% of Total	Total FVS Waived	FVS Waiver Rate
Homicide	25	.03%	25	100%
Attempted Murder	6	.01%	6	100%
Robbery	575	.8%	542	94%
Sexual Assault	475	.7%	392	83%
Other Sexual Offences	100	.1%	81	81%
Major Assault	3,920	5%	3267	83%
Common Assault	6,046	8%	4,444	74%
Uttering Threats	1,573	2%	1,263	80%
Criminal Harassment	82	.1%	64	78%
Other Crimes Against the Person	173	.2%	145	84%
Theft	5,839	8%	4981	85%
Break and Enter	2,649	3%	2,412	91%
Fraud	2,370	3%	2,048	86%
Mischief	2,479	3%	1,918	77%
Possession of Stolen Property	2,178	3%	1,891	87%
Other Property Crimes	119	.2%	106	89%
Failure to Appear	1,673	2%	1,227	73%
Breach of Probation	7,591	10%	6,060	80%
Unlawfully at Large	808	1%	742	92%
Failure to Comply with Order	5,534	8%	4,327	78%
Other Administration of Justice Offences	475	.7%	362	76%
Weapons	1,329	2%	1,106	83%
Prostitution	125	.2%	86	69%
Disturbing the Peace	336	.5%	239	71%
Residual Criminal Code	2,741	4%	2,124	78%
Impaired Driving	12,942	18%	5,626	43%
Other Criminal Code Traffic	4,583	6%	3,116	68%
Drug Possession	2,404	3%	1,424	59%
Drug Trafficking	1,238	2%	980	79%
Youth Criminal Justice Act	193	.3%	178	92%
Residual Federal Offences	2,335	3%	2,136	92%
Total	72,915	100%	53,318	73%

Source: Canadian Centre for Justice Statistics

Table 5 highlights the Federal Victim Surcharge waiver by gender. The majority of accused were male (80%), while 19% were female and 1% were companies. Waiver rates were the highest when the accused was a private business, with a waiver rate of 90%. The waiver rate was the lowest when the accused was male (71%).

Table 5: Federal Victim Surcharge waiver rates by gender and type of accused^[28], 2002/03 - 2006/07

	Total # Sentenced	% of Total	Total FVS Waived	FVS Waiver Rate
Individual Male	58,464	80%	41,315	71%
Individual Female	13,942	19%	11,602	83%
Private Business	117	1%	105	90%
Total	72,523	100%	53,022	73%

Source: Canadian Centre for Justice Statistics

Waiver rates were also examined for summary and indictable offences. As shown in Table 6, the majority of cases proceeded by way of summary offences (82%). However, higher waiver rates were seen for indictable offence cases (88%).

Table 6: Federal Victim Surcharge waiver rates by summary and indictable offence, 2002/03-2006/07

	Total # Sentenced	% of Total	Total FVS Waived	FVS Waiver Rate
Summary	59,514	82%	41,515	70%
Indictable	13,401	18%	11,803	88%
Total	72,915	100%	53,318	73%

Source: Canadian Centre for Justice Statistics

Multivariate Analysis-Factors Influencing FVS Waiver

Table 7 presents the logistic regression coefficients^[29] for variables influencing the FVS waiver as well as odds-ratio results. The model predicted FVS waiver better than the null model, χ² (N=72,523, df=9) =15,531.18, p<.001.^[30]

The results of the logistic regression show that the strongest predictor of waiver was a female offender, meaning that female offenders were more likely to have the FVS waived than male offenders. Property offences and a custody sentence were also significant predictors of FVS waiver. Imposition of a fine and a sentence of probation were weak predictors of FVS waiver, meaning that offenders with these sentences were much less likely to have the FVS waived.

Table 7: Logistic Regression for factors influencing FVS waiver in Saskatchewan Provincial Courts, 2002/03-2006/07

	ß	χ2	Odds Ratio
Custody	0.34	34.41	1.40[**]
Conditional Sentence	-0.82	178.69	0.44[**]
Probation	-1.31	616.32	0.27[**]
Fine	-2.10	1675.40	0.12[**]
Offences against the Person	-0.41	131.54	0.67[**]
Offences against Property	0.10	7.69	1.10[*]
Offences against the Administration of Justice	-0.10	9.28	0.91[*]
Traffic Offences	-0.97	1039.80	0.38[**]
Gender (Female)	0.95	1284.20	2.59[**]

Source: Canadian Centre for Justice Statistics

*p=<.001

**p<.0001

3.2 Waiver Process

Given the overall high waiver rate of 73% in the provincial courts, the study sought to understand how the FVS is waived given the specific provisions in the Criminal Code. As noted in the introduction, s.737(5) provides that where the court is satisfied that there is evidence of “undue hardship,” the FVS may be waived. Reasons for the waiver are to be provided and “the Court shall state its reasons in the record of proceedings” (s. 737(6)).

In order to answer the questions, What reasons are provided for waiver?, and How is the FVS documented in court files?, we examined court files and listened to approximately 63.5 hours of sentencing hearings from the Regina court. As well, we interviewed criminal justice professionals including court staff, Crown, and defence counsel, as well as probation officers.

Provincial Court Files

A manual file review was completed for 50 cases. The Federal Victim Surcharge was addressed in 92% of the cases (n=46). Among the 4 cases in which the FVS was not addressed, the FVS was imposed by default in 2 of these cases; it was unknown how the cases were dealt with in the 2 remaining instances. Approximately one quarter of the case heard in this sample were for assault charges, approximately one fifth were for driving under the influence charges and approximately one-tenth were for failure to appear charges. Other charges included theft, uttering threats and breaking and entering. Approximately one half of the offenders were charged with more than one offence.

The FVS was waived in 30 of the cases (65%). The waiver was documented on the Endorsement in all 30 of these cases. In all of the cases in which the FVS was waived, hardship was provided as the reason for the waiver.

Where the FVS was imposed^[31] (n=16), the imposition was documented in several places^[32], including on the Notice of Fine and Surcharge (n=14), on the Endorsement (n=13), on the probation order (n=6) and in the report of conviction or discharge (n=4).

This file review showed that in almost all cases, there is documentation of the FVS. Where it was waived, a reason of “hardship” was provided.

Review of Sentencing Hearings

We approached the auditory review of the sentencing hearings qualitatively and as such, the review is not intended to provide exact numbers of cases, rather the trends and patterns of sentencing cases. In part, this was due to the limited nature of the sample – all cases are from Regina and were heard by a small number of judges. Approximately one-third of the cases heard were for driving under the influences charges, while approximately just over one tenth were for breach of probation charges and approximately one-tenth were for assault charges. Other charges included breaking and entering, drug trafficking, theft and failure to appear. Approximately one half of the offenders were charged with more than one offence.

According to data from CCJS, the waiver rate for Regina from 2002/03-2006/07 was 73%, the same as the average for the province as a whole. This was confirmed through listening to the 143 sentencing hearings which suggest that approximately three out of four sentencing cases at this court resulted in the surcharge being waived in the 2007/08 time period.

Judges never questioned, nor refused defence counsel’s request to waive the surcharge. Similarly, the Crown prosecutors never objected when defence requested a waiver. The presence or absence of legal representation for the offender did not appear to have any impact on whether the surcharge was waived or not. When the offender was represented by legal aid (and this was in approximately one third of the cases), the judge automatically waived the surcharge without stating a reason and without defence requesting it. Representation by legal aid seemed to serve as prima facie evidence of undue hardship.

Yet there were also cases where judges waived the FVS even when defence counsel stated that the accused was willing to pay.

When the surcharge was waived, the judges sometimes provided reasons, but at other times did not. The common reasons for waiving the surcharge were financial hardship and financial obligation towards family dependents. The surcharge was also waived when the offender was sentenced to a term in custody and when the sentence required the offender to pay a fine and/or restitution.

During this particular time period, the ratio of female offender to male offenders who received a disposition at this court was 1:7, which is somewhat less than the ratio of 1:5 in the average offender population.^[33]

As mentioned above, judges never denied the defence counsel’s request to waive the surcharge. However, it was the judges who raised the matter of the surcharge at the end of the sentencing hearing. If the offender was not represented by legal counsel, the judge used his/her judgement to determine the financial hardship of the offender. Judges sometimes would ask the offender if he/she was employed and whether he/she could pay a victim surcharge. In these cases, the judge almost all the time waived the surcharge after this brief exchange of information.

Sometimes, the Crown prosecutor notified the judge that they were not requesting that the surcharge be imposed, in which case the judge waived it.

The language of s.737 (“shall order”) requires that judges impose the Federal Victim Surcharge. What was evident after listening to the 143 sentencing hearings was that there were common trends to the practice of imposing the surcharge. First, the offender was always employed; second, drinking and driving and possession or distribution of narcotics cases had a higher rate of FVS imposition; and finally the court often imposed the mandatory victim surcharge of 15% when fines were imposed as penalty.

There were few instances in which there was no mention of the surcharge in the 143 sentencing cases; in these instances, one could then assume that the surcharge was imposed automatically by the court clerk as per the Criminal Code.

To summarize, this auditory review of sentencing hearings showed that in these 143 cases, the surcharge was waived more often than not, without stating the reasons for the exemption. When the court provided reasons, these reasons were limited to “undue hardship” for offender and/or dependents of offender. Evidence of undue hardship appeared to be representation by legal aid and an occasional question as to ability to pay the surcharge.

3.3 Collection Rates

The data presented in Table 8 present the FVS amounts ordered and collected for the fiscal years 2002/03 to 2006/07. The average collection rate for the five fiscal years was approximately 82%. It should be noted, however, that in 2003/04 there was a surplus in monies collected. When this year is excluded from the calculation, the average collection rate drops to 69%, which represents a more accurate portrayal.

Table 8: Collection data by fiscal year, 2002/03-2006/07

Fiscal years	Amount Ordered	Amount Collected	Difference	Collection Rate
2002/03	$454,742	$312,228	-$142,514	69%
2003/04	$405,595	$555,839	+$150,224	137%
2004/05	$396,938	$266,554	-$130,384	67%
2005/06	$384,944	$266,213	-$118,731	69%
2006/07	$387,162	$266,944	-$120,218	69%
Total	$2,029,381	$1,667,778	-$361,603	82%

Source: Saskatchewan Court Services, 2002/03-2006/07

3.3.1 Amounts Owing

As shown in Table 9, across the 13 court locations, there were approximately 33,281 cases in which the Federal Victim Surcharge had not been paid accumulated over a period of six or more years. The average amount of monies owed per charge during this period was $50.55. When considering the different court locations separately, the court location with the highest average amount of monies owed was Lloydminster, with an average of $56.22, and the lowest amount of monies owed was seen in Swift Current, with an average amount of $44.29.

It is also of interest to note that the number of provincial surcharges for which money was owed and the amount of money owing on provincial surcharges across the court locations was much higher than those of the Federal Victim Surcharge. This is likely due to the fact that the provincial surcharge is mandatory and automatic, resulting in a larger number of imposed surcharges. The average amount owed per case was much smaller than the average amount owed on the Federal Victim Surcharge, at approximately $24.90. This average was consistent across the 13 court locations.

Table 9: Provincial and Federal Surcharges owing over 6+ years

Location	Number of Provincial Surcharges Owing	Amount of Provincial Surcharges Owing	Average Amount of Provincial Surcharges Owing	Number of Federal Surcharges Owing	Amount of Federal Surcharges Owing	Average Amount of Federal Surcharges Owing
Estevan	5,178	$130,624.05	$25.23	1,013	$53,819.64	$53.13
La Ronge	3,437	$94,075.89	$27.37	8,25	$41,580.52	$50.40
Lloydminster	6,567	$173,485.84	$26.42	1,465	$82,365.25	$56.22
Meadow Lake	10,411	$360,270.92	$33.64	3,250	$181,012.54	$55.70
Melfort	6,016	$151,357.79	$25.16	1,372	$61,916.59	$45.13
Moose Jaw	9,126	$233,448.80	$25.58	7,29	$39,451.99	$54.12
North Battleford	10,640	$277,606.72	$26.10	1,978	$106,816.70	$54.00
Prince Albert	18,648	$474,726.08	$25.46	6,573	$313,742.85	$47.73
Regina	36,856	$794,612.19	$21.56	6,452	$334,705.80	$51.88
Saskatoon	47,578	$1,189,209.37	$24.99	254	$254,322.03	$48.41
Swift Current	6,758	$138,591.89	$20.51	699	$30,956.52	$44.29
Wynyard	5,206	$138,506.78	$26.61	937	$45,922.30	$49.01
Yorkton	11,669	$288,424.58	$24.72	2,734	$135,858.86	$49.69
Total	178,090	$4,434,940.90	$24.90	33,281	$1,682,471.59	$50.55

Source: Saskatchewan Court Services, 2009

3.4 Perspectives of Criminal Justice Professionals

A total of 38 respondents were interviewed from four different court locations: Regina, Saskatoon, Yorkton and Meadow Lake. This section presents these perspectives according to the following dominant themes: awareness of the FVS; the FVS as a meaningful consequence; imposition; enforcement; and final thoughts.

Awareness of the Federal Victim Surcharge

Respondents were asked if they knew the purpose of the FVS. Given that all those interviewed work in the criminal justice system, it would be expected that they would all know about the FVS and they did. The probation officers, however, had very little to say about the FVS overall. This court staff noted that most outside of the criminal justice system likely do not know about the FVS,

I’m not sure that Joe public would know about the surcharge. Other than working here, I don’t know if most people have ever heard about it.

All those interviewed could provide a general statement about where the money collected goes, but no details. For example, another court staff noted,

The money goes into a victims’ fund, but I’m not really sure where it goes after that.

There was also a consensus that offenders do not likely have a good understanding of the surcharge and what it means. Several respondents from each of the different professional categories (i.e., Crown prosecutors, defence, and court staff) noted that the FVS being raised in court is as strong endorsement of its significance as one could hope for.

You can educate people until death with forms and posters, but they still don’t know what the surcharge is until it is mentioned in court.

I think generally speaking that offenders lump everything in as fines – including the surcharge. The court doesn’t help in this either. A simple explanation at sentencing – you know one sentence – to say that the surcharge is there to support programs for victims would help.

There is never any discussion on what it is essentially for. The offenders don’t understand what the discussions are all about—to him it is just a lower fine because his income is lower.

These comments highlight the importance of the judge’s role at sentencing when the judge has a captive audience, so to speak.

The FVS as a Meaningful Consequence

While all those interviewed agreed with the FVS and its purpose, very few saw it as being a meaningful consequence for the offender. For example, this defence counsel noted,

I agree with it. But I don’t think it is a meaningful consequence because offenders see it as just another penalty rather than money going to victims.

One Crown prosecutor noted the irony in that drinking and driving offences have very low waiver rates, while the offences with clearly identifiable victims (i.e., crimes against the person) have high waiver rates. For this Crown, a meaningful consequence is related to the cost of the surcharge (i.e., the more meaningful, the higher the surcharge):

For some offences it is (meaningful), others I don’t think it is. The offences that have specified victims should be higher than the offences that don’t. For example, driving while disqualified; there is no victim to that offence—aside from the broad societal impact. Overall, I think that these types of offences should require a much smaller victim surcharge than someone who punches another person in the face—we have a defined victim who suffered some injuries.

As will be in seen in the section on Enforcement which follows, a meaningful consequence is also about the consequences for non-payment.

Imposition

The following comment from court staff highlights the tension between imposition/waiver and collection/enforcement. Once imposed, a FVS must be collected.

You can’t squeeze blood from a stone. You have community service or default time – but it all depends on the offender. Anything short of default time (i.e., Community service), there needs to be supervision and money spent, so when you look at a $50 order, I’m not sure. . .

All those interviewed knew the provisions of the Code and that the FVS is automatically imposed. Court staff have a clear sense of what is occurring inn at least, their own court. It was clear that there is not one process that is consistent throughout court locations and ultimately, this process depends on the judge. One court clerk noted that,

All of our judges handle this differently. We have one judge who is careful of not saying anything. Another one will always say what it is— he doesn’t leave it up to the clerk to figure out. And then we have a judge who will say “a surcharge will be issued according to law.” So we basically have three different styles. But we are instructed that if the judge remains silent we are to impose it.

A number of different patterns did emerge and this was supported by the auditory review of the sentencing hearings, as well as the variation in waiver rates from the quantitative data.

It appears that there are judges who always waive the FVS and do so regardless of the circumstances of the offender. Many more judges always raise the surcharge and ask the offender specific questions about his or her ability to pay; if there is some evidence of inability to pay or undue hardship, the surcharge will be waived. The surcharge will be waived automatically for an offender who is in receipt of social assistance and/or represented by legal aid.

Court staff in different locations noted that,

Judges in this area use the test that “if you qualify for legal aid you can’t afford the surcharge.”

Now it is only ordered if the person has a job.

A Crown prosecutor noted that,

We have one judge whose position is that if you get legal aid you don’t have to pay the surcharge—that’s his blanket view. We’ve appealed this, and he has been overturned on this because there has to be a proper analysis done. I find that the courts rarely do a proper analysis.

This same Crown also noted,

We had a retired judge who used to say during drinking offences: “If they have enough money to buy booze then they have enough money to pay the victim surcharge.” I always liked those thoughts because taking money from people’s pockets is a real deterrent and punishment that is reasonable, and makes them do some thinking before they go out and commit another offence.

Other Crown prosecutors had the following to say,

It really depends on the judge. Some almost always impose it even on social welfare clients. Others however almost never impose it. Those who don’t, do not because they feel the accused doesn’t have the ability to pay.

Nine times out of ten, it is waived; usually the judge brings it up, but the defence asks for it to be waived.

The defence usually explains that the offender doesn’t have a job, or is going to jail. It’s usually about a two second sentence from the defence that he can’t pay. There’s never been evidence called for someone to explain their hardship.

This Crown prosecutor noted that in terms of evidence of undue hardship, there is,

. . . nothing beyond the defense counsel saying that his client cannot pay. They ask the judge and it is automatically waived. It seems that if it's a legal aid lawyer—it's like a built in means test. I've rarely seen private defense lawyers ask for it to be waived. To be honest, it's nothing more than what the defense counsel says.

This comment is consistent with what was heard in the auditory review of sentencing hearings. Program and policy staff discussed the various attempts that have been made to increase awareness and to lower the waiver rate.

Totally unsatisfactory. In my findings, there is an imposition rate of less than 20% on all cases that end in conviction. The rest are waived or not ordered by the court. What they've done lately is the Crown has appealed the waiving of the surcharge and we have been successful in all of these appeals. We are trying to set a precedent for judges that they cannot just routinely waive these surcharges. At one point this should have an impact on the number of surcharges ordered. Hopefully this will cause our imposition rate to go about to where it should be…at 80 or 90%.

We have not done much with offenders. With the Crown, we have appealed cases where it appears easy to win. . . .I was made aware of the provisions through the Criminal Code…I get a new copy every year. We've made prosecutors aware that they should remind judges of the surcharge. We have also sent letters to the judiciary reminding them that the surcharge is mandatory. However because of judicial independence it's hard to force judges to apply the surcharge.

There have been attempts to work with the different players in the criminal justice system and certainly there is now case law to support imposition and waiver only where it can be substantiated. Change (even a small one) in a system as complex as the criminal justice system can be slow and incremental. Just because change has not yet materialized in a clearly observable form, does not mean that it is not occurring or will never occur. The authors note that the data for this study are already a few years old. A final comment from this respondent, however, suggests a less optimistic outlook.

So yes, you can suggest stuff but it doesn't make too much of a difference.

This Crown prosecutor's final thoughts are a succinct summary of the essence of the issue at sentencing:

It's more of an afterthought in court unfortunately from everybody's standpoint. The judge or his clerk are the usual ones who remind everybody that it needs to be imposed or that something needs to be done. So it's probably not spoken about as much as it should when it comes to sentencing of the accused.

Enforcement

When asked about options such as default time, it was noted that in Saskatchewan, warrants of committal for non-payment of monetary penalties are no longer automatically given. The first step when there is non-payment would be to send the outstanding debts to a collection agency. If the matter returns to court for a default hearing, it could hypothetically cost the system more money to bring the offender back to court because he could already be serving time; the transportation alone would cost more than the $50 or so surcharge. In addition, unless the judge orders additional time, the time would be served concurrently. The following comments illustrate the cynicism associated with default time when additional time is ordered.

Default time is no good, they're already in jail – what's a few more days?

It's ordered and they just ignore it. They only get an extra two days of default, so what's it to them if they don't pay.

This defence counsel discussed the issues on a political level:

Well, restitution and victim surcharge are good, but I think the assumption that they work well because the court can impose these things and that they'll be paid is really incredibly naïve. It requires people to administer them and make it work. I don't think governments have the appetite to invest in people. Bigger victim surcharges and harsher penalties sound good, but you need to put people on the street – not much political bang out of that. It sounds better to send them to jail and give them a bigger fine.

Included in the original research questions was What other options could be considered for collection? There were several options discussed. One, which was mentioned by Crown prosecutors, defence, and court staff was the ability to work off the FVS.

I think that a prisoner fund that you could force them to pay out of— when they work at the facilities—that may work.

I think if people could work off the surcharge with community service instead of jail time—that would be better—because most offenders have low wages or no job anyway.

I had a call from CTR (community training residence [halfway house]) once, about someone having restitution and they'd like to focus on taking

care of their obligations while in CTR—and technically the whole point of corrections and public safety is integrated case management; and that would be a great initiative and everybody was aware of the offender's obligations and circumstances and could help make sure he did so.

Besides incarceration we could make an option for them to work off the fine through fine option.

As well, respondents suggested withholding parole until the FVS (and other monetary penalties) was paid, using a collection agency, and the Refund Set-off Program with Canada Revenue Agency which recently started.

I suppose the other option is if they get parole, prior to parole all of their fines and surcharges must be paid to get parole.

Or just have the fine collection agency that went after restitution, fines and the surcharge. I think the success rate on collection of fines is about 28%.

We're dealing with people who may not even file their income taxes. But if they get a GST cheque, we're working on that.

This Crown prosecutor, among other ideas, suggested a Surcharge Enforcement Officer.

The government doesn't enforce default time in Saskatchewan. They could consider tying it to other collection things from the government like refunds, GST, government checks, driver's licenses, and stuff. There are lots of things you could do to make people pay. We could also hire a surcharge enforcement officer or something like that. There are probably a good many of people who would pay just to avoid the hassle. Unless there is an immediate consequence there is no way they'll pay.

It would seem that any monetary penalty would carry similar enforcement issues. And these enforcement issues are also similar to payment of child or spousal support.

It was evident from the discussions that the situation at present is not satisfactory. As this court staff noted with some frustration,

Our filing cabinets have grown just huge with all the outstanding unpaid surcharges. It creates all these outstanding fines that can't be collected and we have to keep the file open and accessible until it is paid and cleared.

Final thoughts

While there was a strong level of awareness of the FVS amongst Crown prosecutors, defence, and court staff, the issue was not something generally considered by probation officers, even when a financial assessment is required for a Pre-Sentence Report or Restitution Assessment Report. None of the probation officers interviewed had ever considered FVS in these reports. As this probation officer commented at the end of her interview,

You know I've never thought about it but it is something that should be discussed among probation officers. In 15 years, I've never once talked about victim surcharge fees with anyone. I think we as probation officers should discuss that.

The FVS is yet another monetary penalty and in assessing the offender's ability to pay such penalties, the more information before the court the better to determine whether a surcharge might be waived for undue hardship. This defence counsel noted that,

I think it is a good consequence and a useful tool as well. I've had cases where I make an agreement where the person can pay an elevated surcharge instead of jail. That has worked on occasion. It's really a useful tool.

No one interviewed suggested that the surcharge should not be waived in cases where it truly would pose undue hardship. There did seem to be a general consensus that the surcharge is being waived with greater frequency than actual financial circumstances would deem necessary. As this Crown prosecutor noted in final thoughts,

Judges should find out more about the case before waiving it. We should expect offenders to pay it unless they show that they cannot pay it.

This legal aid lawyer had an interesting idea:

It should actually be graded to the level of a person's income rather than a standard percentage across the board.

One could imagine tables that would provide a simple approach to this assessment. As such, this approach would not further complicate the judge's inquiry, rather defence would come and in submissions provide the surcharge amount according to tables that would account for employment income, location, number of dependents, etc. This is the approach taken for the Child Support Guidelines. The amount involved for the FVS, however, is quite small and one would need to question whether the effort invested would be worthwhile.

With the exception of the probation officers, all respondents had strong opinions on the Federal Victim Surcharge. In the final section of this report, the findings of this report and the key learnings will be discussed.

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^[19] Note that 72,931 cases of data were provided by CCJS; however, data were missing in 16 of these cases.

^[20] Waiver rates by disposition, most serious offence and specific offence for each location are also presented in Appendix A.

^[21] ‘Other’ dispositions include restitution, absolute and conditional discharge, suspended sentence, payment of legal costs and suspension of driver’s licence.

^[22] Offences against Property include: theft, break and enter, fraud, mischief, possession of stolen property and other property offences.

^[23] Offences against the person include: Homicide, attempted murder, robbery, sexual assault, other sexual offences, major assault, common assault, uttering threats, criminal harassment and other crimes against persons.

^[24] Offences against the Administration of Justice include: failure to appear, breach of probation, unlawfully at large, failure to comply with an order and other administration of justice offences.

^[25] Other Criminal Code Offences include: weapons offences, prostitution, disturbing the peace and residual Criminal Code offences.

^[26] Other Federal Statutes include: drug possession, drug trafficking, offences under the Youth Criminal Justice Act and residual Federal Statutes.

^[27] Traffic Offences include: impaired driving and other Criminal Code traffic offences.

^[28] Note the gender of the accused was unknown in 392 cases. Waiver rates by gender were similar for each location. As such, only the aggregate data is presented.

^[29] ß reflects the number of standard deviation units a waiver would change with a change in one standard deviation unit in a variable. Negative values reflect a negative relationship (as one variable increases, waiver decreases) and positive values reflect a positive relationship (as one variable increases, waiver increases). χ² reflects the value of the chi-square; the statistical test used to determine the overall fit of the model.

^[30] The null model hypothesizes that these variables do not predict FVS waiver, while the proposed model hypothesizes that that these variables do predict FVS waiver. The results of the logistic regression show that these variables do in fact predict FVS waiver.

^[31] Note that the outcome of the FVS waiver was unknown in four cases.

^32] Note that impositions were documented in more than one document for every case.

^[33] According to data for 2007/08 from the Corrections Management Information System (n=30,000), 82% of offenders in the provincial corrections system were male and 18% were female; a ratio of 1:5.

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