In 1989, the victim surcharge fund was created to provide a way for offenders to have a sense of accountability to their victims. As per section s.737(1) of the Criminal Code, should a person be convicted under the Controlled Drugs and Substances Actor convicted or discharged under s.737(1) of the Criminal Code, they must pay a victim surcharge over and above any other penalties or punishments received.
At first glance, the concept of a victim surcharge fund seems logical. The payments received are not disbursed to the victim of one particular crime but are instead controlled by the government to assist all victims of criminal acts. The problems with the fund begin to arise when perpetrators find themselves owing significant amounts of money to the victims surcharge fund without having the money to do so.
The amount that an offender owes to the victim surcharge fund is variable. Factors that are taken into consideration include whether or not another fine was imposed. If that was the case, the surcharge will be 30% of the fine received. Until 2013, judges were able to use their discretion when it came to administering the victim surcharge. If it was determined that levying the charge would cause significant hardship for the perpetrator, the judge could waive it altogether. When the federal Conservatives passed the act that made victim surcharges mandatory, judges no longer had the ability to make decisions on a case-by-case basis.
An argument that can be made for re-introducing the discretionary use of the victim surcharge relates to the crime and the person that committed it. For instance, a middle class individual who was charged with impaired driving may have the means to pay the surcharge whereas a person who stole money to support an addiction may not. As a result of having to pay the fee, the person battling addiction may find themselves in an even more marginalized position than they were before.
Since 2013, the victim surcharge has been challenged in court as well as by judges who deemed it to be unconstitutional. As it stands, the surcharge remains a mandatory part of the criminal offence sentencing process.