Our proposed changes to proposed subsection 737(5) are simply to remove the language that right now says “an offender establishes to the satisfaction of the court that” and then the words “on application of the offender”.
We see that as restoring the previous discretion judges had in practice—this is what they did in practice in provincial court—which was to speak with an offender at the conclusion of sentencing about the victim surcharge and to give the offender an opportunity to speak to their financial circumstances. We know that many of these individuals, particularly the clients Pivot serves, typically are unrepresented. They may not even have access to duty counsel. Because the victim surcharge occurs at the very end of sentencing, in practical terms it's very difficult for these individuals to make formal application to the court and then to satisfy the burden of establishing “to the satisfaction of the court” that undue hardship exists.