Jody Wilson-Raybould to revamp victims' surcharge this week

The Liberals are moving towards changing the controversial mandatory victim surcharge brought in by the previous Conservative government, with the federal justice minister expected to introduce related amendments to the Criminal Code this week.

The coming changes are part of sweeping reforms to the criminal justice system — expected to include an overhaul of the tough-on-crime agenda championed by the Conservatives — that Prime Minister Justin Trudeau tasked Justice Minister Jody Wilson-Raybould with leading.

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Valerie Gervais, a spokeswoman for Wilson-Raybould, provided no details, but those who have been watching the issue closely are expecting the amendments to restore at least some degree of discretion to judges.

"We can trust our judges to do the right thing," said Anne London-Weinstein, president of the Defence Counsel Association of Ottawa.

"They were doing it for years," she said.

Introduced in 1989

The federal victim surcharge was introduced in 1989 as a way to make offenders bear at least some of the cost of funding programs and services for victims administered by the provinces and territories.

It became automatic 10 years later, but sentencing judges were given the discretion to waive the surcharge if it would cause "undue hardship" to the offender, or to his or her dependents.

That changed three years ago, when the Conservative government made the victim surcharge mandatory — irrespective of the ability to pay — and also doubled the amount judges had to impose.

The Conservative changes sparked protests from judges who, having had their ability to exercise judicial discretion taken away, started refusing to impose the surcharge for impoverished offenders or issuing fines that were so minimal the surcharge amounted to nickels and dimes.

Mandatory surcharge 'absurd'

Jonathan Rudin, program director at Aboriginal Legal Services of Toronto, said the mandatory victim surcharge is especially absurd when an offender is receiving social assistance or benefited from legal aid to cover the cost of their defence.

"It doesn't seem to make a lot of sense to take away the money that they have, which is barely enough to live on, to pay money back to the same government to run a program," said Rudin.

He also said it disproportionately affected indigenous peoples.

Not everyone is excited about the changes.

"I would hope that any proposed change demonstrate a clear respect for victims and their needs and should avoid back-sliding to the situation that we had before, where these surcharges were being waived routinely, without any justification or accountability," said Sue O'Sullivan, the federal ombudsman for victims of crime.

A 1994 study cited when the Conservatives brought in the changes showed the surcharge was only imposed 15 per cent of the time and actually collected in just 2.7 per cent of cases.

O'Sullivan called on the Liberal government to make sure any changes would not result in reduced funding for victims services. She also wants Ottawa to collect and analyse data to see the impact of these surcharges and to make sure are specific parameters around the term "undue hardship."

Needs of victims

Barry Stuart, a retired Yukon judge who was part of a small group invited to a private meeting with Wilson-Raybould this spring to discuss Liberal plans for reform, said the courts need to do a better job dealing with the needs of victims.

"It's important that victims believe that the criminal court can address their interests," said Stuart, a director with the Smart Justice Network of Canada.

He said the victim surcharge cannot be the only way to do that.

Stuart said he would like to see prosecutors required to raise the issue in every case, but allow judges to waive it should the offender be unable to pay and ideally be given the ability to impose community service instead.

Stuart said he would also like to see judges be given the ability to impose a much higher surcharge for offences such as environmental crime, fraud and selling drugs to children, as well as be able to grant specific restitution to victims of crime without them having to go through a costly civil court process.

New Democrat MP Murray Rankin said restoring judicial discretion is key.

"The best thing to do is simply to say that any victim surcharge should be at the discretion of the sentencing judge — no longer mandatory and no longer a particular amount," said Rankin, the justice critic.