Victim Surcharge Regime Declared Unconstitutional


Section 737 of the Criminal Code requires that a victim surcharge be imposed for every offence committed. The section removes the discretion of sentencing judges to decline to impose a surcharge based upon the specific circumstances of the offender.

The imposition and enforcement of the victim surcharge creates deeply disproportionate effects for those who are the most impoverished.

In R. v. Boudreault the Supreme Court of Canada went further, holding that “the impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable.”

That is to say, the surcharge is a constitutionally impermissible form of cruel and unusual punishment under section 12 of the Charter.  The Court found that victim surcharge regime as set out in section 737 was not saved under section 1 of the Charter (the reasonable limits provision).

R. v. Boudreault, 2018 SCC 58 (CanLII), at paras. 94, 97.

The Supreme Court declared section 737 of the Criminal Code “to be of no force and effect immediately, pursuant to s.52(1) of the Constitution Act, 1982.”

R. v. Boudreault, at para. 98.  

Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

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