Bill C-28: An Act to amend the Criminal Code (victim surcharge)

Criminal Code Coming into Force Explanatory Notes First Session, Forty-second Parliament, 64-65 Elizabeth II, 2015-2016 HOUSE OF COMMONS OF CANADA BILL C-28 An Act to amend the Criminal Code (victim surcharge) FIRST READING, October 21, 2016 MINISTER OF JUSTICE 90802 SUMMARY This enactment amends the victim surcharge provisions in the Criminal Code to (a) allow the court to exempt an offender from the payment of a victim surcharge in cases where the offender satisfies the court that the payment would cause the offender undue hardship and to provide the court with guidance with respect to what constitutes undue hardship; (b) provide that a victim surcharge is to be paid for each offence, with an exception for certain administration of justice offences if the total amount of surcharges imposed on an offender for these types of offences would be disproportionate in the circumstances; (c) require courts to provide reasons for the application of any exception for certain administration of justice offences or any exemption from the payment of a victim surcharge; and (d) clarify that these amendments apply to any offender who is sentenced after the day on which the amendments come into force, regardless of whether or not the offence was committed before that day. Available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016 HOUSE OF COMMONS OF CANADA BILL C-28 An Act to amend the Criminal Code (victim surcharge) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.‍S.‍, c. C-46 Criminal Code 2013, c.‍11, s.‍2 1 Paragraph (b) of the definition sentence in section 673 of the Criminal Code is replaced by the following: (b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.‍2(1) or 194(1), section 259, 261 or 462.‍37, subsection 491.‍1(2), 730(1) or 737(1.‍1), (3) or (5) or section 738, 739, 742.‍1, 742.‍3, 743.‍6, 745.‍4 or 745.‍5, 2013, c. 11, s. 3(1) 2 (1) Subsection 737(1) of the Act is replaced by the following: Victim surcharge 737 (1) Subject to subsection (1.‍1), an offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge for each offence, in addition to any other punishment imposed on the offender. Exception (1.‍1) The court may order an offender to pay fewer victim surcharges than the number of offences, if it is satisfied that the total amount of the surcharges imposed on the offender for the following types of offences would be disproportionate in the circumstances: (a) any offence relating to the offender’s failure to appear before a court; and (b) any offence relating to a breach of any conditions of a release imposed on the offender by a peace officer or of any conditions of a court order, if that breach did not cause a victim physical or emotional harm, property damage or economic loss. (2) Section 737 of the Act is amended by adding the following after subsection (4): Exemption (5) If an offender establishes to the satisfaction of the court that payment of a victim surcharge under subsection (1) would cause undue hardship to the offender, the court may, on application of the offender, make an order exempting the offender from the payment of the victim surcharge. Undue hardship (6) For the purposes of subsection (5), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants. For greater certainty (6.‍1) For greater certainty, for the purposes of subsection (6), the imprisonment of the offender alone does not constitute undue hardship. Reasons (6.‍2) When the court makes an order under subsection (1.‍1) or (5), the court shall state its reasons in the record of the proceedings. 2013, c. 11, s. 3(4) (3) The portion of subsection 737(9) of the Act before paragraph (a) is replaced by the following: Enforcement (9) Subsections 734(3) to (7) and sections 734.‍3, 734.‍5, 734.‍7, 734.‍8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) or (1.‍1) and, in particular, (4) Section 737 of the Act is amended by adding the following after subsection (9): Application — subsections (1.‍1) and (5) to (6.‍2) (10) Subsections (1.‍1) and (5) to (6.‍2) apply to any offender who is sentenced for an offence under this Act or the Controlled Drugs and Substances Act, after the day on which those subsections come into force, regardless of whether or not the offence was committed before that day. 2013, c. 11, s. 4 3 Paragraph (b) of the definition sentence in section 785 of the Act is replaced by the following: (b) an order made under subsection 109(1) or 110(1), section 259 or 261, subsection 730(1) or 737(1.‍1), (3) or(5) or section 738, 739, 742.‍1 or 742.‍3, Coming into Force Thirtieth day after royal assent 4 This Act comes into force on the 30th day after the day on which it receives royal assent. Published under authority of the Speaker of the House of Commons EXPLANATORY NOTES Criminal Code Clause 1: Relevant portion of the definition: includes .‍.‍.  (b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.‍2(1) or 194(1), section 259, 261 or 462.‍37, subsection 491.‍1(2), 730(1) or 737(3) or section 738, 739, 742.‍1, 742.‍3, 743.‍6, 745.‍4 or 745.‍5, Clause 2: (1) Existing text of subsection 737(1): 737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender. (2) New. (3) Relevant portion of subsection 737(9): (9) Subsections 734(3) to (7) and sections 734.‍3, 734.‍5, 734.‍7, 734.‍8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular, (4) New. Clause 3: Relevant portion of the definition: includes .‍.‍.  (b) an order made under subsection 109(1) or 110(1), section 259 or 261, subsection 730(1) or 737(3) or section 738, 739, 742.‍1 or 742.‍3,