Nunavut court softens impact of victims of crime surcharges

Justice Susan Cooper has ruled that victims of crime surcharges may be imposed concurrently — meaning they run together at the same time — rather than consecutively, or one of top of the other. That means — for example — that three $100 fines imposed for three offences arising from the same incident can be treated as a single $100 fine. The practice has been used for many years to calculate jail sentences but until now, were not use for calculating victims of crime surcharges. (FILE PHOTO)

The Nunavut Court of Justice has dealt a blow to a controversial fine surcharge levied against convicted offenders in Canada.

In October 2013, former Prime Minister Stephen Harper’s government amended a federal law that forced convicted offenders to pay a mandatory victim of crime surcharge for each offence.

But in a decision released Aug. 22, Justice Susan Cooper gave her reasons for allowing a convicted offender from Kugluktuk to pay only one penalty for four criminal convictions related to the same incident on March 27, 2016.

Cooper found the four surcharges, attached to the fines those convictions produced, may be applied concurrently instead of consecutively.

That means for the four crimes Gavin Kililavioyak pleaded guilty to in Kugluktuk on Aug. 8 — one count each of assault and theft and two counts of breaking court orders — Kililavioyak effectively only had to pay one surcharge.

Generally, for more serious indictable crimes, such as assault, the penalty is $200 for each conviction, while for less serious summary conviction crimes, the penalty is $100.

Or, if a sentence includes a fine, a victims’ surcharge can be equal to 30 per cent of that fine.

Lawyers and scholars have roundly criticized the victim of crime penalty especially in jurisdictions with widespread poverty such as Nunavut.

Some critics have pointed out that if the offender goes to prison, it’s his or her family members who have to pay the surcharge.

Yet family members are often the victims of crimes.

That means the victims of the crime are sometimes punished financially for the crimes committed against them.

Other critics have questioned what services are being provided in Nunavut through these surcharges — a question the Government of Nunavut refused to answer in 2014.

With high unemployment and cost of living, few Nunavummiut, including convicted offenders, could afford to pay the fine, critics of the surcharge say.

But in her decision, Cooper did not cite any of the above reasons for allowing Kililavioyak to pay his surcharges concurrently.

Instead, Cooper said the surcharge should be treated like many other orders added on to sentences, called ancillary orders.

For example, if someone is convicted of multiple driving offences, a single driving prohibition might be ordered.

In Nunavut, jail sentences for multiple convictions are “routinely” imposed concurrently, Cooper said.

That happens when the offences are closely related to each other or if the sum of the sentences for each conviction would be disproportionately high compared to the severity of the crimes.

The most serious crime in the set would be defined as the “substantive offence” while the other crimes would be concurrent to that offence.

In Kililavioyak’s case, the assault conviction is the substantive offence and the breach of court orders are concurrent offences, Cooper suggested.

Although Cooper does not include the total victim of crime surcharge levied against Kililavioyak, it appears he was ordered to pay $200 for the four convictions.

Kililavioyak also entered a guilty plea on Aug. 8 to assaulting a child on March 5 of this year. The four incidents covered by the concurrent surcharge issue took place March 27, 2016.