Mandatory Surcharge Under Criminal Code Struck Down, Deemed Cruel and Unusual Punishment by Supreme Court of Canada


By Written on behalf of Campbell Bader LLP

The Supreme Court of Canada recently struck down a Criminal Code provision that required the payment of a mandatory victim surcharge. This decision will directly impact offenders and could have important consequences in sentencing decisions.

The Facts

Under s. 737 of the Criminal Code, everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act was required to pay money to the state as a mandatory victim surcharge. The amount of the surcharge was 30 per cent of any fine imposed, or, where no fine was imposed, $100 for every summary conviction count and $200 for every indictable count.

The surcharge was intended to fund government programs designed to assist victims of crime. It applied regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim. Judges were required to impose the surcharge in every case and had no discretion to waive it.

At one time, offenders could avoid the imposition of the surcharge by satisfying the court that “undue hardship to the offender or the dependants of the offender would result”. However, this discretion was eliminated in 2013 and the imposition of the surcharge could not be appealed, unless the sentencing judge ordered the payment of more than the statutory minimum.

In this case, several offenders challenged the constitutionality of the surcharge during sentencing on the basis that it constituted cruel and unusual punishment, contrary to s. 12 of the Canadian Charter of Human Rights and Freedoms (the “Charter”) and/or violated their right to liberty and security of the person, contrary to s. 7 of the Charter. The offenders all lived in serious poverty and faced addiction, mental illness and disability. While the results were mixed at sentencing, the Ontario Court of Appeal and Quebec Court of Appealrejected the constitutional challenges.


At issue was whether the mandatory surcharge violated s. 12 and/or s. 7 of the Charter. If it did, the court had to consider whether it was saved under s. 1 of the Charterand, if it wasn’t, what the appropriate remedy should be.

The Decision

The majority of the court found that the surcharge violated Charterrights.

The court began by establishing that the victim surcharge constituted a form of punishment, and then turned to whether that punishment was cruel and unusual. In order to make this finding, the court asked itself “does the victim surcharge render the sentences of either the appellants or a reasonable hypothetical offender grossly disproportionate based on its overall impact and effects?”

While the court acknowledged that the victim surcharge was not grossly disproportionate in all cases, it found that for certain offenders “the actual imposition, operation, and effects of the mandatory surcharge, when combined, create a grossly disproportionate punishment.” The court concluded that, although it advanced a valid penal purpose, the mandatory victim surcharge regime created egregious effects and fundamentally disregarded proportionality in sentencing.

As a result, the court found that the surcharge constituted cruel and unusual punishment and violated s. 12 of the Charter. Because of this finding, the court stated that it was not necessary to consider whether it also violated s. 7 of the Charter.

In many cases where a Charter breach has been established, the state may seek to justify the infringement under s. 1 of the Charter by articulating a pressing and substantial objective and demonstrating that the impugned law is proportional to that objective. However, the state did not put forward any argument or evidence as such. As a result, the court did not engage in an s. 1 analysis and found that it was not justified under s. 1.

The court therefore declared s. 737 of the Criminal Code to immediately be of no force and effect. Additionally, the court stated that this declaration invalidates the surcharges for the appellants of the case and leaves it open to other offenders to appeal their surcharges.

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.


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