Good afternoon, honourable Chair and members of the committee. I am a lawyer at Rosenberg Kosakoski Litigation in Vancouver, and I appear today on behalf of Pivot Legal Society.
I echo my colleague's acknowledgement that this proposed legislation is an important step in ameliorating the reality that Pivot's clients, many of whom live in extreme poverty in the Downtown Eastside of Vancouver, have been very negatively impacted by the mandatory victim fine surcharge. We also have some concrete recommendations for improving these proposed amendments.
I'll focus my submissions on only one part of the proposed amendments, which is proposed new subsection 737(5). As it is currently drafted, this provision allows offenders to be exempted from payment of the victim fine surcharge, provided that they can establish, to the satisfaction of the court, that it would cause them undue hardship. The individual must apply to the court for an exemption.
We believe that the wording of subsection 5 should reflect what judges did in practice prior to the 2013 amendments to these provisions that made the victim fine surcharge mandatory. The general practice in provincial court was for a judge to exempt a person, often on a judge's own initiative, during sentencing, without a formal application, after the individual was given an opportunity to speak to their financial circumstances.
Removing the words in this provision, “an offender establishes to the satisfaction of the court that”, and also “on application of the offender” would restore a judge's discretion to make these exemptions as needed, while retaining the presumption that a surcharge will be imposed.
A revision such as this one would ensure that the hardship exemption is accessible to people who need it the most. These are people living in poverty. They are generally unrepresented by counsel, and they are often convicted of relatively minor offences, for example, shoplifting groceries, breach of conditions, and failure to appear, all of which are very common criminal charges in the Downtown Eastside.
In addition, we urge the committee to consider how this bill might be expanded to waive the existing surcharges that have been imposed on people who cannot pay them. These are people who have already asked for extensions of time to pay, as this is the only relief currently granted under the existing legislation. We propose that this legislation be amended so that these surcharges are struck from the records of people living in poverty, who cannot pay them without seriously compromising their well-being, safety and survival.
Thank you for the opportunity to speak to the committee today. We welcome your questions.