INTRODUCTION AND BRIEF DESCRIPTION
This section allows a court to order an offender to pay a victim surcharge in an amount higher than the set amount if deemed appropriate and the offender is capable of paying.
SECTION WORDING
737(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.
EXPLANATION
Section 737(3) of the Criminal Code of Canada enables courts to order offenders to pay a victim surcharge that exceeds the minimum amount specified under subsection (2) if they believe it is appropriate given the circumstances and that the offender is capable of paying a higher amount. The victim surcharge is a monetary penalty imposed on offenders in addition to their punishment or sentence, and it is intended to provide financial assistance to victims of crime. The amount of the victim surcharge is generally based on a specified percentage of the fine imposed on the offender or, in the case of a person serving time in prison, a set amount. In some cases, offenders may be exempted from paying the surcharge if the court finds that they are unable to pay or that doing so would cause undue hardship. While the victim surcharge is a relatively small amount in comparison to many fines imposed by the court, the potential for judges to order higher surcharges than the prescribed minimum can have significant financial implications for offenders. This provision also acknowledges that the circumstances of a crime may differ from case to case, and that judges should be given the discretion to take these factors into account when imposing a sentence. By ordering a higher surcharge than the minimum, judges can send a clear message that offenders are responsible for the harm they have caused, and that they must take steps to pay back the community and acknowledge the consequences of their actions. Overall, Section 737(3) of the Criminal Code underscores the importance of providing support to victims of crime and holding offenders accountable for their actions, while also providing a means for courts to consider individual circumstances and tailor their sentences accordingly.
COMMENTARY
Section 737(3) of the Criminal Code of Canada grants the court the power to order an offender to pay a higher victim surcharge than the amount outlined in subsection (2), which mandates the payment of a set amount to a victim surcharge fund. The victim surcharge is a mandatory fine imposed on offenders in addition to any other sentence ordered by the court. The purpose of the surcharge is to provide financial assistance to victims of crime and to foster community awareness about the impact of criminal activity on victims. The victim surcharge is an important aspect of the Canadian criminal justice system. It serves as a means of demonstrating to the victim and the community that the offender is being held accountable for their actions beyond mere punishment and serves to deter the commission of further criminal offences. The emphasis on rehabilitation and restitution in Canadian criminal law is supported by the victim surcharge, which is intended to compensate victims for the harm and loss caused by the offender. In the context of subsection (3), the court is given the flexibility to order a higher amount of surcharge where circumstances warrant. This discretion of the court to order a higher victim surcharge recognizes the unique circumstances of each case and the magnitude of the offence committed. It provides the court with greater flexibility to craft a sentence that is just and appropriate in the particular circumstances. However, the imposition of a higher surcharge must be justified and proportional to the offence. In considering whether to impose a higher victim surcharge, the court will consider a range of factors, including the offender's financial capacity, the extent and type of harm inflicted on the victim, and the nature and seriousness of the offence. The court must also consider the principles of sentencing set out in section 718 of the Criminal Code, which require that punishment be proportionate to the gravity of the offence and the degree of responsibility of the offender. The provision of a higher victim surcharge has been the subject of some controversy in Canada. Some argue that it places undue financial burden on defendants who may already be economically disadvantaged. Others argue that the surcharge serves as an effective tool to reduce crime and protect victims and that a higher surcharge is necessary to adequately fund programs that provide victim support and assistance. Regardless of the controversy surrounding this section of the Criminal Code, it serves as a critical element of our justice system to support victims and to ensure that offenders are held accountable for their actions. The provision of a higher victim surcharge in appropriate circumstances allows the courts to address the specific needs of each individual victim and to impose a sentence that is just and proportional to the offence committed. Ultimately, the use of the higher victim surcharge provision is a discretionary power that is carefully executed by the court in consideration of all relevant factors.
STRATEGY
Section 737(3) of the Criminal Code of Canada provides courts with the discretion to order offenders to pay a victim surcharge in an amount exceeding that set out in subsection (2). This provision serves as an important tool for judges to promote the principles of restorative justice and to provide financial support to crime victims. However, the exercise of this discretion requires careful consideration of a variety of factors, including the offender's financial situation, the impact of the crime on the victim, and the overall objectives of the criminal justice system. One of the key strategic considerations when dealing with this section of the Criminal Code is the need to balance the interests of the victim, the offender, and the community. On the one hand, the victim's interests are best served by imposing a significant victim surcharge that provides financial compensation for the harm they have suffered. This can help to address the victim's immediate needs and assist with their long-term recovery. On the other hand, the offender's interests must also be considered, particularly with respect to their ability to pay the surcharge and its impact on their rehabilitation and reintegration into society. Finally, the interests of the community as a whole must be considered in terms of promoting public safety and preventing further criminal activity. Given these competing interests, a number of different strategic approaches can be employed to ensure that section 737(3) is applied in a fair and balanced manner. One approach is to conduct a thorough financial assessment of the offender's ability to pay, taking into account factors such as income, assets, and outstanding debts. This assessment can help to ensure that the surcharge is set at a level that reflects the offender's ability to pay, while also providing meaningful support to the victim. Another approach is to consider the impact of the crime on the victim when setting the amount of the surcharge. While subsection (2) provides a maximum surcharge amount, there may be cases where a higher amount is necessary to truly compensate the victim for their losses. In such cases, the court may need to consider factors such as the severity of the crime and the nature of the harm suffered by the victim when setting the surcharge amount. A third strategy is to use the victim surcharge as a tool to promote restorative justice principles. In some cases, the offender may be willing to participate in restorative justice initiatives, such as meeting with the victim or taking part in community service projects. In such cases, the court may be able to use the victim surcharge as a way to support these initiatives and encourage the offender to take meaningful steps towards rehabilitation and reintegration. Ultimately, the key to successfully applying section 737(3) is to ensure that the surcharge is set at a level that is fair and reasonable, taking into account all of the relevant factors. This requires a careful balance between the interests of the victim, the offender, and the community, as well as a nuanced understanding of the goals and principles of the criminal justice system.