Good afternoon, everyone.
I won't repeat what the two lawyers from Pivot Legal Society just said. I also had the opportunity to hear their arguments before the Supreme Court.
Let me provide some background. One of my reasons for being here today is a case that I appealed in Quebec, Alex Boudreault v. Her Majesty the Queen, et al. The case concerned the judge's discretion regarding whether to impose a victim surcharge, a discretion that was removed by the Conservative Party in 2013. The case was heard by the Supreme Court in April 2018, and we're awaiting the verdict. Three Court of Appeal for Ontario cases were added to Mr. Boudreault's case, which I was defending and which came from the Court of Appeal of Quebec. Therefore, there were interveners from across Canada.
First, I would like to say that we aren't fixated on certain legal arguments. For example, we aren't claiming that the imposition of a victim surcharge violates section 12 of the Canadian Charter of Rights and Freedoms. Without going into that level of detail, we want to reassure people and tell them that, as representatives of the accused individuals, we aren't opposed to the principle of the victim surcharge. The surcharge exists for a reason and it's important in the Canadian criminal justice system. All interveners, prosecutors and counsel in Canada agree on that point.
However, we don't agree with the removal of the judge's discretion. We would like this discretion to be restored, for the reasons indicated by my two colleagues, among other reasons. One of the fundamental principles of the Criminal Code requires the judge to ask about the accused person's ability to pay before imposing a fine on the person. We believe and we respectfully argue that this reasoning should also apply to a victim surcharge. It must be understood that the victim surcharge applies not only to all cases, but also to all charges contained in an indictment or information.
I'll provide a simple example. In the case of five charges related to a criminal offence and for which the person receives a prison sentence, the victim surcharge will amount to $1,000. This could result in a disproportionate penalty, since the judges won't take into account the victim surcharge that must be imposed and that will be handled by the court registry. In addition, the offenders won't even pay the surcharge because they don't have any money.
If the offenders are sentenced to prison, some people may think that the offenders have the option of doing community service as punishment for their default of payment. However, in the provinces that allow community service, the time limit is two years. I don't have any evidence or solution, but to my knowledge, inmates can't do community service. If their prison sentence is three years, the only solution in their case would be to extend their incarceration, as mentioned by my colleagues. This is one of many examples in the case of a default of payment.
There may have been some laxness in Canadian trial courts before the removal of the judge's discretion in 2013. I agree that, in exercising their discretion, the judges may not have conducted the same type of investigation before imposing a victim surcharge as the one that they conducted before imposing a fine. Since 2013, counsel and courts have realized that they would be more rigorous in exercising the discretion if it were restored, since the imposition of a victim surcharge would no longer be automatic.
As I was saying, there may have been some laxness. Without questioning the importance of the victim surcharge, some chose not to impose it if, for example, the offender had just been sentenced to five years in prison. If the discretion is restored, the courts can and may need to ask certain questions about the appropriateness of a victim surcharge. I hope they do so, and I imagine that the defence counsel will be able to answer the questions properly.