Section 737(1) of the Criminal Code stipulates that an offender convicted or discharged of an offence under the Criminal Code, the Controlled Drugs and Substances Act, or the Cannabis Act, must pay a victim surcharge fee for each of the offences for which they have been convicted or discharged.
What is a Victim Surcharge Order?
A victim surcharge is an order made by the sentencing court directing the offender to pay a fee known as a victim surcharge fee for each offence they have been convicted of. This money is paid to the government, not the complainant.
How much is the Victim Surcharge Fee?
Pursuant to section 737(2) of the Code, if the offender is ordered to pay a fine as part of their sentence, the victim surcharge will be 30% of the fine. If the offender is not ordered to pay a fine as part of their sentence, the victim surcharge will be $100.00 where the offender is convicted of a summary conviction offence and $200.00 where the offender is convicted of an indictable offence.
What if an Offender is Unable to Pay the Fee?
Section 737(2.1) of the Code creates an exception, providing some discretion to the court. The section stipulates that the court may decline to make a victim surcharge order or may order the offender pay a reduced amount.
Prior to making the order, the sentencing judge should inquire with the offender or their counsel about the offender’s ability to pay the fine. If the court is satisfied that making the order would cause undue hardship to the accused, and that that undue hardship would be grossly disproportionate to the responsibility of the offender and gravity of the offence, the court may exercise its discretion. Where the court exercises its discretion by deciding not to make the order, or reducing the amount payable, they must give reasons for doing so on the record.
How long will an Offender get to pay the Surcharge?
At sentencing when the order is made, the judge will inquire with the offender about how long they need to pay the fine. Based on that, the judge will specify an amount of time to pay in the order.
What is Undue Hardship?
As outlined in section 737(2.2) of the Criminal Code, undue hardship refers to a situation where the offender’s financial situation is so precarious due to unemployment, homelessness, obligations towards dependants and lack of significant assets that they would be unable to pay the fee.
Does the Victim get the Money?
No. The victim of the offence does not get the money. Victim surcharges are payable to the province. The province then allocates that money to various victim support and assistance groups throughout the province.
An order to pay money directly to the victim of an offence is called a restitution order.