The Federal Victim Surcharge - The 2013 Amendments and their Implementation in Nine Jurisdictions
3. Results (continued)
3.6 The Newfoundland and Labrador Experience
There were a total of four participants from the Newfoundland and Labrador justice system. The informants came from one department and three programs.
The primary key informants (n=4) included:
- A/Provincial Manager of Victim Services Program, Department of Justice and Public Safety
- A/Departmental Controller, Department of Justice and Public Safety
- Provincial Manager of Corporate Services, Provincial Court, Department of Justice and Public Safety
- Court Manager, St. John's, Provincial Court, Department of Justice and Public Safety
3.6.1 Standard Collection Process
When the federal victim surcharge payment is overdue, the court will transfer it to the Fines Administration Division of Justice and Public Safety (JPS) for follow up by departmental collection officers.
3.6.1.1 Fine Option Program
There is no Fine Option Program.
3.6.1.2 Collection Rates
The overall collection rate for the five year period from 2010-2015 has been estimated at 66%.
3.6.2 Standard Enforcement Process
When the payment of the surcharge is overdue, the Court will transfer the surcharge to the Fines Administration Division of the JPS for follow up by departmental collection officers. The officers have the ability to withhold driver license renewals, vehicle renewals and engage in other standard collection activities like including attachment through CRA Federal Refund Set-off Program and registration on the Judgment Enforcement Registry. These latter enforcement techniques are only utilized if the total fines owing by a debtor, including the federal victim surcharge, exceed $300. All of these enforcement techniques were available before the changes in 2013. Collection is internal to the Newfoundland and Labrador government; no third party is used.
3.6.2.1 Reasonable Time
A reasonable time frame to satisfy the federal victim surcharge has not been established by the Lieutenant Governor in Council in this jurisdiction. However, where there is no fine imposed by the court for an offence, any federal victim surcharge shall be paid within 30 days of conviction or discharge. The accused is given a copy of their fine order that has the time frame included. The percentage of the federal victim surcharge that is being collected within a reasonable time in this jurisdiction could not be extracted from the database due to the short time frame of this project.
3.6.3 Impacts Due to Changes in the FVS
When asked what problems have been encountered with the enforcement/collection of the federal victim surcharge it was stated that "we have the standard problems for any collection process - inability to locate the debtor, the debtor not being cooperative, etc. These problems are not particular to the federal victim surcharge."
3.6.3.1 Administration
It was felt that there has been minimal impact on the Court. Staff may issue additional orders; this process, however, is automated so it does not have a major impact on resources. If there has been any drain in resources, it has been the extra time spent explaining the purpose of the federal victim surcharge to offenders; with fewer cases being waived due to the mandatory imposition, the numbers of offenders requiring this explanation has increased.
3.6.3.2 Victim Services Revenues
Over the past five years, there has been an increase in revenue collected for victim services in this jurisdiction. Although there has not been a consistent annual increase in revenue collected, there is a significant increase from the $188,245 collected in 2010-11 compared to the $290,530 in 2014-15.
Informants stated that regardless of increases in revenue realized for victim services, "the revenues collected from the federal victim surcharge continue to be less than the amount of funding required to provide services to victims."
| Year | FVS Imposed | FVS Collected |
|---|---|---|
| 2010-11 | $179,217 | $188,245 |
| 2011-12 | $200,230 | $232,806 |
| 2012-13 | $164,383 | $186,535 |
| 2013-14 | $260,128 | $174,649 |
| 2014-15 | $830,029 | $290,530 |
3.6.3.3 Offenders' Sentence Completion
The informants did not feel they could comment on this question.
3.6.4 Local Recommendations
There were no recommendations from this jurisdiction.
3.7 The Nova Scotia Experience
There were a total of five participants from the Nova Scotia Justice System. The key informants came from three departments and four different programs.
The primary key informants (n=5) included:
- Director of Victim Services, Court Services Division, Nova Scotia Department of Justice
- Court Administrator, Court Services Division, Nova Scotia Department of Justice
- Records Management Clerk, Court Services Division, Nova Scotia Department of Justice
- Senior Probation Officer, Correctional Services
- Manager, Service Nova Scotia Collections
3.7.1 Standard Collection Process
At the time of sentencing, the judge confers with the offender on exactly how much time he or she needs to pay their fine; the Bench then sets the date for the federal victim surcharge to be paid. The offender may return to court in that time period to ask for an extension. Once this date expires, however, without an extension requested, the surcharge will be immediately and automatically (i.e. next day) be sent to an internal collection agency in the government. Once sent to collections, payment is still accepted at the court, in which case both offices would be notified of the payment. This is not a new process and it has been "business as usual" since prior to 2013 amendments. There is no specific record keeping of unpaid surcharge at the court level; if the payment is offered it is accepted. It was noted that in the case of partial payment, the portion paid would be applied first to the surcharge, then to court costs and finally to the fine proper.
3.7.1.1 Fine Option Program
Nova Scotia does in fact have a Fine Option Program, but it is not available for the federal victim surcharge. That being said, it still significantly and positively impacts the payment of the federal victim surcharge. From February 1990 until June of 2000 the Fine Option program was available for the satisfaction of the FVS. The key informants noted more times than not, the offender would work off the fine portion of their imposition and leave the federal victim surcharge unpaid. Amendments made in June of 2000 now require offenders to pay federal victim surcharge and court costs prior to being admitted into the Fine Option Program. In many cases where large fines need to be satisfied, this has provided a strong incentive for offenders to pay the federal victim surcharge in order to gain access to the Fine Option Program. Although there was no data to support this assertion, informants all agreed this change in policy has had an overall net positive effect on collection of FVS in this jurisdiction.
3.7.1.2 Collection Rates
There has been a marked increase in the amount of federal victim surcharge being imposed and collected since 2013. The gains have been slow, steady and positive. Three years ago there was $350,000 in surcharge ordered with $300,000 collected that year. The following year it was estimated that there was a clear increase due to the 2013 amendment with mandatory impositions of $800,000 in federal victim surcharge and a slight increase in the collection rate with approximately $380,000 being realized. However, the next year significant gains were noted with $500,000 being collected based on $1.2 million ordered federal victim surcharge. A collection rate for the six year period from 2010-2015 has been estimated at 60%.
3.7.2 Standard Enforcement Process
Unpaid surcharges go to an internal collection agency with Service Nova Scotia. The Motor Vehicle Branch is also involved with enforcing surcharges related to motor vehicle infractions, e.g., DUI, breathalyser infractions; income tax refunds are withheld for unpaid federal victim surcharges through the CRA Federal Refund Set-off Program. It was also noted that the offender's credit rating could be adversely affected once it goes to collection. These measures have been in place well before the amendments of 2013.
3.7.2.1 Reasonable Time
A time frame has not been established by Order in Council in this jurisdiction. Again, the time frame in which the offender must pay the surcharge is set by the judge at the time of sentencing.
3.7.3 Impacts Due to Changes in the FVS
Anecdotal evidence was offered concerning sentencing trends that have been noted in this jurisdiction. In an effort to protect the more vulnerable offenders from undue hardship, the Bench has engaged in "creative sentencing practices" in order to "work around" the mandatory imposition of the surcharge. For example, they will order an exceedingly small fine, e.g., $1, with a subsequent surcharge of 30 cents, or state the fine and surcharge imposed must be paid in 100 years. This is particularly the case with impoverished, homeless individuals and domestic violence situations where the victim may still be cohabitating with the perpetrator and would therefore be penalized by an imposition of a heavy surcharge on her partner. That being stated, all informants agreed this was a minority of cases and maybe should be considered a solution rather than a problem.
3.7.3.1 Administration
There have been no notable impacts on the administration of the federal victim surcharge regime as the process is fully automated.
3.7.3.2 Victim Services Revenues
As noted earlier in this report, there have been slow, steady, significant gains in the revenue for victim services in Nova Scotia that informants felt have been a direct result from the 2013 amendments of the federal victim surcharge regime, with increases from approximately $300,000 to over $500,000 over a three year period.
| Year | FVS Imposed | FVS Collected |
|---|---|---|
| 2010 | $367,096.15 | $311,569.76 |
| 2011 | $338,292.88 | $309,278.38 |
| 2012 | $313,330.06 | $306,061.39 |
| 2013 | $317,092.90 | $295,868.41 |
| 2014 | $903,612.70 | $374,899.17 |
| 2015 | $1,287,427.71 | $526,402.01 |
3.7.3.3 Offenders' Sentence Completion
When speaking to representatives from Corrections, it was explained that the federal victim surcharge impacts the offender only to the extent that it is part of their case management strategy. For instance, the offender would be encouraged to pay the federal victim surcharge in order to get their motor vehicle license back, in order to get employment which would then further their case management plan.
3.7.4 Local Recommendations
When discussing the collection process for the federal victim surcharge in Nova Scotia the following assertion was put forth:
"Service Nova Scotia Collections does seem like a very good option to consider in [the] future. I am concluding that the Federal Government would have to make this arrangement with Service Nova Scotia. I know that Service Nova Scotia Collection expenses are covered by charging a 15% collection fee on fines but not on the federal victim surcharge portion. I would strongly recommend that this option of having SNS Collections collect federal fines be explored, but I do not know who in the federal government would have the authority to make this happen."
It should be noted that in Nova Scotia, Criminal Code offences with outstanding fines and/or federal victim surcharge are being sent to Service Nova Scotia (SNS) for collection, but other federal fines that fall under Transport Canada, Department of Fisheries and Oceans, or air travel, etc. are not sent for collection.
3.8 The Prince Edward Island Experience
There were two participants from the Prince Edward Island justice system.
- Provincial Manager, Victim Services, Department of Justice and Public Safety
- Manager, Court Services, Department of Justice and Public Safety
3.8.1 Standard Collection Process
There is a Fines Collection Officer in Court Services responsible for the collection of all fines and relevant surcharges including the federal victim surcharge. There are no external collection agencies used in Prince Edward Island. According to the Summary Proceeding Act in Prince Edward Island all outstanding federal victim surcharges are forwarded to Access PEI where the Motor Vehicle Branch will use further enforcement strategies to collect the federal victim surcharge.
3.8.1.1 Fine Option Program
There is a Fine Option Program on Prince Edward Island; however it is not available for federal victim surcharge satisfaction.
3.8.1.2 Collection Rates
There was insufficient data available to speak to collection rates of the federal victim surcharge.
3.8.2 Standard Enforcement Process
Outstanding federal victim surcharges are forwarded to the Motor Vehicle Branch at Access Prince Edward Island where vehicle and driver license renewal are withheld until full satisfaction of the federal victim surcharge. These strategies have been in place well before the amendments to the Criminal Code took force in October 2013.
3.8.2.1 Reasonable Time
A reasonable time frame to satisfy the federal victim surcharge has not been established by the Lieutenant Governor in Council in this jurisdiction. At the time of sentencing, the judge establishes the time frame the federal victim surcharge must be paid to Court Services. Extensions may be granted by the Fines Collection Officer responsible for collecting the FVS. The informant was not able to comment on the percentage on surcharge being collected in a timely manner within the PEI jurisdiction.
3.8.3 Impacts Due to Changes in the FVS
Problems with enforcing the collection of the federal victim surcharge are "typical to any fine collection" with offenders' inability to pay, problems locating the offenders or in some cases the offenders' licenses already having been suspended thereby rendering this enforcement ineffective.
3.8.3.1 Administration
There has been no significant impact on the administrative aspects of the federal victim surcharge due to its mandatory nature; however, it was noted that "judges struggle with ordering the federal victim surcharge at times because of the offender's circumstances."
3.8.3.2 Victim Services Revenues
The revenues of victim services have not shown a consistent trend since the amendments in October 2013. In fact, when one looks further back to earlier collection rates there was more revenue for victim services in 2010-2011 when $74,378 was collected, than in 2014-2015 with $64,757 collected (of the $258,054 that was imposed). Informants stated, "It is difficult to assess the impact [the amendments have had on revenues for victim services]."
| Year | FVS Imposed | FVS Collected |
|---|---|---|
| 2010-11 | N/A | $74,378 |
| 2011-12 | N/A | $79,362 |
| 2012-13 | N/A | $69,119 |
| 2013-14 | N/A | $57,460 |
| 2014-15 | $258,054 | $64,757 |
3.8.3.3 Offenders' Sentence Completion
In Prince Edward Island, it was noted that the "non-payment of the federal victim surcharge can affect the offender's ability to complete the sentence, as well as obtain a record suspension."
3.8.4 Local Recommendations
There were no recommendations from this jurisdiction.
3.9 The Yukon Experience
There were a total of three participants from the Yukon Department of Justice, all from Court Services.
The primary key informants (n=3) were:
- Manager, Court Operations, Court Services, Yukon Department of Justice
- A/Supervisor, Court Clerks, Court Services, Yukon Department of Justice
- Cashier, Court Services, Yukon Department of Justice
3.9.1 Standard Collection Process
Yukon Court Services does not have a unique collection process in their jurisdiction that court staff/community corrections follow in order to enforce the federal victim surcharge where the offender is unable to pay. As a result, there are no policies, manuals or guidelines as there is no unique process to document.
3.9.1.1 Fine Option Program
There is a Fine Option Program in the Yukon and it is available to offenders to satisfy the FVS. It became available after the amendments took force in October 2013.
When a court clerk reviews the fine order with the offender, they advise her/him that the Fine Option Program is available through Offender Supervision and Services (OSS), i.e., probation officers. Court Services does not keep track of how many offenders ask OSS about the Fine Option Program. When OSS registers or deregisters someone in the program, Court Services is informed. Hours worked in the program are applied against the FVS first and then the fine. There are not any statistics available to document how many people pay off their surcharges/fines in this way; it just shows up in the system as the surcharge/fine having been paid.
3.9.2 Standard Enforcement Process
The Yukon Territory, as well as the other two territories, does not have any enforcement program. Collection agencies are not used, the surcharge simply "stays on the books". The informants stated that due to the wording of the Criminal Code offenders cannot be refused a renewal /issuance of driver's licenses or other territorially-issued permits to promote the payment of federal fines/surcharges.
3.9.2.1 Reasonable Time
A time frame has not been established by the Lieutenant Governor in Council of this jurisdiction. In the Yukon, the judge always assigns a due date/payment schedule as part of the order. This date is communicated directly to the offender by the judge in court and by clerks when reading the sentence to the offenders. It was noted from data provided from this jurisdiction that 44-50% of the FVS imposed has not been collected since 2012-13.
The following written statement was provided to ensure clarity on this particular issue:
"In accordance with sections 734.4 and 734.5 of the Criminal Code, Yukon cannot refuse to issue or renew, or suspend, the offender's driver's licence until the fine and surcharge are paid in full because the Public Prosecution Service of Canada prosecutes Criminal Code and other Federal offences in the three territories. Yukon does apply these sanctions to territorial offences and the resulting payment rate is much greater."
3.9.3 Impacts Due to Changes in the FVS
The informants could not recall any particular impact that the changes in the federal victim surcharge regime have had on their jurisdiction.
3.9.3.1 Administration
The informants felt there has been no notable adverse effect on court resources.
3.9.3.2 Victim Services Revenues
The federal victim surcharge collected in this jurisdiction has fluctuated over the past five years with collection rates hovering in the $20,000 range from 2010 to 2012, a drop in revenue for the next two years and a substantial increase in collection, $63,665.50 during 2014-15 year. There was also a significant increase in federal victim surcharge imposed during this last year, 2014-15. The overall collection rate for the five year period from 2010-2015 has been estimated at 61%.
| Year | FVS Imposed | FVS Collected |
|---|---|---|
| 2010-11 | $33,240.50 | $24,050.50 |
| 2011-12 | $31,455.00 | $22,692.50 |
| 2012-13 | $22,132.50 | $14,795.00 |
| 2013-14 | $30,146.70 | $14,842.00 |
| 2014-15 | $113,732.75 | $63,665.50 |
3.9.3.3 Offenders' Sentence Completion
Where offenders cannot pay, the fine/surcharge remains outstanding on the books.
3.9.4 Local Recommendations
When asked what concerns have arisen with the collection and enforcement of the federal victim surcharge in the Yukon jurisdiction, it was stated that they are not able to use one of the most effective tools for enforcement, e.g., driver's license sanctions, because of the wording of the Criminal Code and thishas been a frustrating situation.
3.10 Parole Board of Canada
- Director, Clemency and Record Suspension, Parole Board of Canada
- Manager, Policy and Legislative Initiatives Section, Policy and Operations, Parole Board Canada
The informants from the Parole Board of Canada were offered the interview protocol in its entirety. Due to the peripheral role the FVS plays in the parole and pardon process, the questions from the interview protocol were not deemed directly relevant. These particular informants were asked:
- Is the federal victim surcharge considered during the parole process?
- If the federal victim surcharge has not been paid, what are the repercussions for the offender?
- Is the federal victim surcharge related to pardons/record suspension?
- Can you get a pardon if you have an outstanding surcharge on your order?
- From your perspective, is there anything else that would be helpful to know about the process?
3.10.1 FVS Consideration
3.10.1.1 Parole Process and the FVS
Before being interviewed, the key informant with expertise in parole issues solicited the opinions of several personnel that are intimately involved in the parole process on a daily basis to ensure the accuracy of her answers. All secondary informants were in agreement with what was conveyed in the interview.
The federal victim surcharge is not explicitly considered during the parole process. It is not included in any risk assessment paradigms. It is not noted in decision making or policy frameworks related to conditional release. The payment or non-payment of the FVS has no weight in the risk assessment process or release decisions made by the board.
It was also noted that payment is never considered as a proxy measure for care, concern or remorse toward the victim by offenders that come before the board. It is viewed in the vast majority of cases as a simple indication the offender had the means to pay the surcharge; conversely, it was also noted that an individual experiencing genuine remorse may simply not have the capacity to pay and again, non-payment does not signal any inward disposition towards the victim.
That being stated; the informant posited that in rare situations a parole member might pick up on the fact that an offender made an extraordinary effort to pay the surcharge, e.g., incarcerated with limited resources making a heroic effort to pay a large surcharge in a timely manner, as noted by those who prepared the report.
In essence, the surcharge is rarely considered in the parole process and would only be on a case by case basis in a very peripheral manner. For instance, the surcharge could be inadvertently considered when information that is provided to the parole board in terms of how the offender is progressing, including their willingness to comply with court ordered obligations, one of which would be the payment of the federal victim surcharge, is written in the report.
Although the federal victim surcharge is not explicitly considered during the parole process, the parole board does consider the victim during the hearing and planning process. For instance, they consider victim impact statements and pay particular attention to ensure they do not contradict any court order when planning release, e.g., no contact situations, but not to the payment of the surcharge.
3.10.1.2 Pardon Process and the FVS
The law is very clear that the federal victim surcharge is explicitly considered and must be resolved prior to consideration of eligibility for a record suspension. Like the payment of a fine, satisfaction of the federal victim surcharge is a legislative requirement under the pardon application scheme.
The informant provided the following documentation to highlight the fact:
Pursuant to section 4.1 of the Criminal Records Act
4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:
(a) 10 years, in the case of an offence that is prosecuted by indictment or is a service offence for which the offender was punished by a fine of more than five thousand dollars, detention for more than six months, dismissal from Her Majesty's service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act; or
(b) five years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph (a).
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