Unpaid crime surcharge need not be paid by those who can't afford it, says N.W.T. judge
N.W.T. Supreme Court follows up on Supreme Court of Canada decision on mandatory surcharges
The Northwest Territories' chief justice has ordered the courts to not immediately accept payment of outstanding victims of crime fees charged to offenders over a period of five years.
In a decision released this week, N.W.T. Chief Justice Louise Charbonneau said anyone charged the fee while it was mandatory, but has not paid it, can come before the courts now and ask that it be waived.
From Oct. 24, 2013, to Dec. 14, 2018, it was mandatory for judges to charge everyone convicted of a crime a surcharge when sentencing them. The victims of crime surcharge amounts to $100 for each less serious crime and $200 for more serious crimes.
Before the federal Conservative government of Stephen Harper made the fee mandatory in 2013, judges had discretion to waive the surcharge when sentencing people — such as those experiencing homelessness or mental illness — who clearly could not afford to pay it.
In December, the Supreme Court of Canada struck down the law the Harper government had introduced to make the surcharge mandatory, saying it amounted to cruel and unusual punishment for those who cannot afford to pay it.
N.W.T. judges have been exercising their discretion in applying the surcharge since the decision.
I don't know that there's any way that people can get that money back.- Charles Davison, lawyer
"First of all, there's no obligation on people to take any steps now to pay the surcharge if they were ordered to pay after the changes in 2013," said N.W.T. lawyer Charles Davison.
"But if they do come to the court registry to try to pay the surcharge … the matter will be referred to a judge who will consider the matter in court."
The main focus of those court appearances will be whether the person can afford to pay it or not.
Davison represented a client who went to the court registry in February to arrange to serve time instead of paying a $600 surcharge he was assessed last year. Davison wanted the judge to declare that all unpaid victims of crime surcharges that were paid during the time they were mandatory need not be paid.
Justice Charbonneau would not go that far. She said in cases where a person can afford to pay, the surcharge is not unconstitutional.
Davison said it's unlikely there's any recourse for people who, though they couldn't afford to pay, managed to scrape together the money to pay up anyway, or who served time instead of paying.
"The law stood as it was drafted by Parliament until December 2018," said Davison.
"Judges were imposing [the surcharge] in good faith because that's what the Criminal Code told them to do, so I don't know that there's any way that people can get that money back."