The Federal Victim Surcharge in Saskatchewan

4. Key Learnings

The goal of this research has been to better understand how the Federal Victim Surcharge provisions in the Criminal Code operate in practice in Saskatchewan.

Ultimately, officials are interested in answering the last research question, Why has the anticipated revenue to be generated from the 1999 amendments to the Criminal Code provisions related to the FVS not been realized? The simple answer to this question is that the FVS is waived in the majority of cases. Similar to the studies in New Brunswick and the Northwest Territories, the provincial average waiver rate in Saskatchewan is high (73%) for the time period 2002/03-2006/07. This rate varies considerably by court location.

There are definitely parts of the province where unemployment and socioeconomic conditions are worse than in others; unemployment data from the 2006 Census for the different court locations were examined. The lowest average waiver rate was in Esteven at 46%, which had an unemployment rate of 2.7%; the highest average waiver rate was in La Ronge at 87%, which had an unemployment rate of 8.2%.[34] Yet we also know that the unemployment rate of the provincial offender population for that time period is 46%. Further analyses of the provincial offender population would likely find higher unemployment rates in those locations where offenders resided.

No one interviewed suggested that where there is true inability to pay the FVS, that it should not be waived. It is clear, however, that there are situations where a decision to waive the FVS could not be based on factors such as an offender’s employment or other income. For example, the average waiver rate for fine dispositions for the time period 2002/03-2006/07 is 53%. Yet if an offender is receiving a fine, it is more difficult to make the argument that the FVS (15% of any fine) would result in undue hardship because a financial penalty is being imposed where undue hardship is not considered.

It is hoped that the research findings and the six key learnings that follow will be used to engage those in the criminal justice system in constructive discussions as to how to realize potential revenue from the Federal Victim Surcharge.

4.1 Increase awareness, for all players in the criminal justice system- especially judiciary, defence and probation officers, of the importance of FVS in terms of funding specific programs

While interview data showed good general awareness overall about the FVS and the provisions of the Criminal Code, there was little specific awareness of exactly what the money is used for. This was also similar to the findings in New Brunswick and the Northwest Territories. This is quite important because one would suppose that a better understanding of the role of the programs, and their funds, could make a difference in terms viewing the FVS as a meaningful consequence.

Without understanding the value of the services that can be offered to victims of crime, the Victims’ Fund remains an abstract concept. The interview data demonstrated that few players in the criminal justice system know what the revenue generated through the collection of the FVS supports. United Way campaigns in recent years have taken the approach of demonstrating what a donation can do: $5 can buy five breakfasts for a child who might otherwise go to school without sustenance; $50 can pay for a session of counseling for a woman who has escaped an abusive relationship to help her move forward; or, $150 can send a child to camp for a week of wonderful activities.

One could imagine raising awareness about victim services in this manner, as well as highlighting the areas and victims (perhaps through mapping) that are underserved or not served at all.  This might work particularly well if it were done by court location. The tools could be used with the judiciary, legal aid and the private defence bar to raise awareness at imposition, as well as with probation officers as they work with their clients on compliance. Furthermore, demonstrating the potential revenue that could be generated by decreasing waiver rates across the province by 10%, 25%, or more would be instructive to all those concerned particularly if those revenues were juxtaposed beside real services.

Increasing awareness for the judiciary that a custodial or other disposition does not necessarily mean that an offender cannot pay the FVS would also be beneficial. The average waiver rate over the time period of 2002/03-2006/07 for custodial dispositions was 93%, for other[35] dispositions 92%, for conditional sentences 83% and for probation 77%; this is in contrast to fine dispositions which had an average waiver rate of 53% over the same time period. Where no fine is imposed, the Federal Victim Surcharge is $50 in the case of an offence punishable by summary conviction and $100 in the case of an offence punishable by indictment. These amounts can be paid in scheduled payments and are small enough that they can be paid provided prudent case management, in most cases.

Finally, increasing awareness for the judiciary, legal aid and the private defence bar, as well as probation officers around the intent of the FVS might also assist in increasing offender accountability. The data demonstrate that the intent of the FVS provisions (i.e., to increase offender accountability to the victim), is not being realized in Saskatchewan. Offences for which a victim is directly involved (i.e., offences against the person) had one of the highest average waiver rates of 79%. Traffic offences, which generally do not have an easily identifiable victim, have the lowest waiver rate, at approximately 50%.

4.2 Increase involvement of criminal justice professionals at imposition and at enforcement

Data on collection of the FVS was only available in an aggregate form and as such, were limited in terms of helping to understand collection efforts in the province. The average collection rate from 2002/03 – 2006/07 was 82%.[36] This is similar to the other jurisdictions which have examined the operation of the Federal Victim Surcharge. In New Brunswick, while the waiver rate was 66% across the province, the collection rate was 85% (Law and Sullivan 2008). As such, the collection rate is fairly high and one might conclude that the surcharge is being applied in those cases where there is a fairly good chance of payment. In the Northwest Territories, the situation is similar.

When questioned, several probation officers indicated that it would be useful for them to be more aware of the FVS and the required payments for their clients. There are opportunities for probation officers to provide detailed information on an offender’s financial situation at sentencing: when providing a Pre-Sentence Report (PSR) or a Restitution Assessment Report (RAR). In both these reports, mention of the ability to pay the FVS would certainly support not waiving it. One could also imagine that with more information about the financial circumstances of the offenders before them, defence would be less inclined to request a waiver and judges might be inclined to consider such information before automatically waiving the FVS. An explicit sentence in a PSR or RAR would be even stronger: “This individual has/does not have the financial means to pay the Federal Victim Surcharge.”

It is the responsibility of defence counsel to satisfy the court that undue hardship would result through imposition of the FVS. Additional information before the court through these reports can only bolster the importance of the FVS.

In addition, while Crown prosecutors all were aware of the FVS, there was no evidence from the interview data, nor from the auditory review of sentencing hearings that Crown actively challenged a request for waiver at trial. Greater Crown involvement in appropriate cases (i.e., where there is the ability to pay, particularly in cases of fines) would be yet another group of criminal justice professionals working on the solution. The examples of the three cases discussed in section 1.4 provide precedents for further awareness. Two of the cases were from Saskatoon and one was from Yorkton. It will be important to have the Crown prosecutors on those cases share their successes with other Crown prosecutors in all court locations.

On the enforcement side of the FVS, as this court staff indicated, “Our filing cabinets have grown just huge with all the outstanding unpaid surcharges.” Quantitative data indicate that there are challenges collecting the provincial surcharge as well. Raising awareness amongst probation officers as suggested above might assist in the enforcement of the FVS. This key learning is directly linked to the next one.

4.3 Examine enforcement of monetary penalties in general – same approach to FVS as to restitution and fines

Probation officers noted in their interviews that the Federal Victim Surcharge, as one of several monetary penalties, was not high on their list of priorities; however, there have been some recent changes in the Province of Saskatchewan regarding the enforcement of monetary penalties that will mean consistent enforcement approaches and consequences for those who do not pay.

In January 2008, the Fine Collection Branch (FCB) was set up in the Ministry of Justice and Attorney General. In May 2009, the provincial legislation Summary Offences Procedure Act, 1990, was amended to provide more powers to the FCB.[37] The FCB pursues unpaid restitution, surcharge (both provincial and federal) and fines equally and they are consistent across all court location. The FCB uses all tools available, including the new agreement with Canada Revenue Agency. The role of the FCB was not widely known amongst those interviewed for this study.

While the FCB and its procedures are relatively new for the Province, there is optimism that they will have a positive impact. For example, the revenue collected by the FCB from Canada Revenue Agency for Saskatchewan’s Victims’ Fund in 2008/09 was:

  1. Provincial Victim Surcharge - $21,338.04
  2. Federal Victim Surcharge - $16,864.91

In the interviews, criminal justice professionals were asked about default and it was noted that warrants of committal for non-payment of monetary penalties are no longer automatically given. Furthermore, several respondents noted that it is not possible to use the Fine Option Program to pay off the surcharge. While the costs of using a private collection agency might be greater than the benefits because the average FVS is a small amount, there is great potential for the role of the FCB in terms of assisting with the civil enforcement of restitution orders.

Greater awareness for probation officers would assist with enforcement of the FVS if an offender has a conditional sentence or probation order. Where there is default, the FCB has begun to play a critical role to ensure that there are meaningful consequences for those who do not pay the FVS.

Greater awareness for all criminal justice professionals about the FCB, its role and the powers it has would also benefit as this information could be passed on to offenders to provide the incentive to pay their surcharge orders in a timely fashion.

It would be beneficial for Victim Services to maintain a close dialogue with the FCB in order to understand how fine collection is working across the province.

4.4 Improve data tracking mechanism

To truly understand what is occurring in terms of collection of the FVS, the data management system needs to be able to produce reports that can track individual payments of the FVS. The current aggregate reports only note amount ordered per year and amount collected per year. These limitations will undermine efforts to improve collection and cause frustrations to those involved in those improvements. Given the increasing role of the Fine Collection Branch, these data challenges may well be resolved in the coming months. Ultimately, however, those working to effect change must be able to see the positive results, or if efforts are not working, they must be able to know that as well.

4.5 Appeal appropriate cases

The quantitative data demonstrate that imposition is not the default as the 1999 amendments intended, but rather in some court locations, the exception. Again, this may be because the sentencing judge has an excellent understanding of the economic realities of the offender. Indeed, of the total provincial offender population in 2007/08 (N=30,000), 46% was unemployed.[38]

There is some evidence, through the auditory review, interviews, and caselaw that suggest that sentencing judges do not always have full information about an offender’s financial situation and that the waiver of the FVS may occur for any number of other reasons. Using unemployment or legal aid representation as a test may not always provide a full picture. There may be disposable income that is used for alcohol or cigarettes that could be used toward payment of the FVS. As noted in the previous sections (4.1 and 4.2), greater awareness and greater involvement on the part of the judiciary and other criminal justice players would certainly help to getting full financial information before the court prior to waiving the FVS.

This full financial information would certainly assist at sentencing, as noted earlier in the report from the 2000 Ontario case of R. v. S.M.:

…most of the circumstances as related by [offender’s counsel] are common, I think to at least fifty, if not seventy-five percent of the people who appear before me and if I make an Order that waives the surcharge on these conditions, am I essentially saying that it should be waived more often than not, and I am certain that that’s not what was intended by the statute…That is to say, I am certain that the test was intended to be a little higher than would have resulted in average automatic waiver.[39]

This case suggests that the test for waiver should be higher than unemployment or legal aid representation that was evident in three quarters of the cases reviewed through transcripts.

The Saskatchewan case of R. v. Yaremko[40] is an excellent precedent for Crown prosecutors to rely on and for judges to understand the mandatory language in the Federal Victim Surcharge provisions. The decision for this case came down in July 2008 and as data collection was on- going at that time, we were not able to ascertain whether the case has had any direct impact. Yorkton, where the case was heard, already has the second lowest waiver rate (52%) in the province. The decision could have a strong impact in other court locations where the waiver rates are particularly high such as La Ronge (87%) and Meadow Lake and Saskatoon (82% in both).

It would extremely beneficial for Crown prosecutors to be aware of the caselaw on the Federal Victim Surcharge with particular attention to the recent Saskatchewan case of Yaremko. This awareness would enable them to identify appropriate cases for appeal. The precedential value of appealing appropriate cases cannot be underestimated. Decisions that are in favour of imposition and particularly, decisions where reasons are given send a strong message to all those in the criminal justice system. While this change may take time and some resources are needed, the benefits in terms of additional resources for the Victims Fund and victims are clear.

4.6 Examine effectiveness of CRA program

The CRA Refund Set-off Program only began in April 2008. At the time this study was collecting data, only preliminary data were available on how the program was working. As noted in section 4.3, the revenue collected by the Fine Collection Branch from Canada Revenue Agency for Saskatchewan’s Victims’ Fund in 2008/09 was:

  1. Provincial Victim Surcharge - $21,338.04
  2. Federal Victim Surcharge - $16,864.91

This may represent a large amount because it is the first year and there is a backlog. This program sends a strong message about the importance of the Federal Victim Surcharge and that there are consequences for non-payment. It will be important to track this program to understand its effectiveness. This could definitely be a best practice for other jurisdictions.

4.7 In Conclusion

This study of the Federal Victim Surcharge in Saskatchewan found that, as in previous studies (Law and Sullivan 2008; Ha 2009), waiver rates are, on average, high in the province although they vary considerably depending on court location. They are also higher for custodial dispositions, than for fine dispositions. Because the FVS tends to be a relatively small amount, stakeholders noted that the cost of enforcement would be greater than the value of the Federal Victim Surcharge. It is clear from the data that the primary reason that potential revenue from the 1999 amendments has not been realized is the high waiver rates of the FVS.

The results of this research suggest that current efforts to reduce waiver rates should be continued, in particular by challenging the offenders’ uncontested inability to pay; by ensuring full financial information is presented to the court in Pre-Sentence Reports or Restitution

Assessment 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.

As noted above, findings indicate that more awareness about the surcharge is warranted; audiences will likely be more receptive to awareness campaigns if they are done in a targeted way with a focus on the importance of victim services. Probation officers could use this information to work with offenders about the purpose of the FVS and where the money goes. In addition, the partnership with Canada Revenue Agency should be monitored as it may prove to be a best practice for collection.

The Policy Centre for Victim Issues of the Department of Justice Canada will continue to have a role to play in raising awareness. This can be done by sharing research results and fostering constructive discussions on the issues through different avenues such as Federal Provincial Territorial Working Groups, the Canadian Bar Association and the Canadian Association of Provincial Court Judges. As well, the Policy Centre for Victim Issues will need to continue to work with educational organizations such as the National Judicial Institute to ensure recognition of the need for judicial awareness about the FVS.

It will be important to continue discussions on the Federal Victim Surcharge with as many different players as possible – first and foremost with judges, but also with the defence bar, with Crown prosecutors, with probation officers, and with court staff. In addition, the issues raised should be addressed with other jurisdictions to learn from best practices in terms of imposition and collection. Discussions are required on what is “undue hardship,” the philosophy of the Federal Victim Surcharge in terms of offenders’ accountability to victims, where the revenue generated goes and what the loss of revenue means in terms of the ability to provide much- needed services to victims of crime. It will be through such constructive discussions that ultimately, long term solutions to the high waiver rates will be achieved.

[34] Other low waiver rates include: Yorkton with 52% and unemployment in 2006 at 5.7% and Swift Current with 59% and unemployment in the same year at 4.6%. High waiver rates include: Meadow Lake and Saskatoon both at 82% and with unemployment rates of 7.1% and 5.5% respectively in 2006.

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

[36] Note 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%.

[37] OC 537/2009 - The Summary Offences Procedure Amendment Regulation, 2009 (No. 2)

[38] Corrections Management Information System, 2007/08

[39] Supra note 11.

[40] Supra note 13.