Pivot Legal Society fights to abolish mandatory ‘victim fine surcharge’ from Criminal Code at Supreme Court of Canada

For Immediate Release

April 17, 2018

(From L-R: Lawyers Caitlin Shane, Pivot; Naomi Moses, Rosenberg Kosakoski LLP; DJ Larkin, Pivot; Graham Kosakoski, Rosenberg Kosakoski LLP)

Ottawa, ON – Today at the Supreme Court of Canada, Pivot Legal Society and the team at Rosenberg Kosakoski Litigation challenged a law that unconstitutionally threatens the health and safety of marginalized communities, including those dying at an alarming rate because of the opioid overdose crisis in Canada. Together, we argued before the nine justices of the Supreme Court that the mandatory victim fine surcharge amounts to cruel and unusual punishment, and therefore, should be struck from the Criminal Code.

“A mandatory fine constituting a third or more of a person’s monthly welfare income drives people further into poverty and puts their health and safety at risk,” said DJ Larkin, Legal Director at Pivot Legal Society.

The victim fine surcharge is a mandatory fee of $100 or $200 per offence imposed on all individuals convicted of an offence in Canada regardless of its seriousness. For marginalized communities and people receiving income assistance, paying this fine can lead to greater poverty and force individuals to make sacrifices that threaten their health and safety.

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Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.

“Forcing someone to choose between paying the fine and going hungry, or not paying the fine and risking arrest is unconscionable,” said Larkin.

In Canada we must stop punishing people criminally because they live in poverty. This surcharge does just that, and therefore must be abolished.”

This provision in the Criminal Code adversely affects three populations in particularly damaging ways:

  • For people who use drugs: Because not paying the fine can lead to arrest, individuals may use drugs alone, in more isolated areas, and in a rushed state to avoid police detection. This increases the likelihood of overdose and decreases the chances that life-saving help will be available to intervene; i.e., with naloxone. People who use drugs may also be less likely to phone 911 if they witness an overdose for fear of police attendance and arrest. In the context of an opioid crisis that killed 1,446 people in British Columbia in 2017, the victim fine surcharge and the harms it causes are indefensible.
  • For people affected by homelessness: In the Downtown Eastside, where 20 per cent of the population experiences homelessness and poverty, the effects of the surcharge can be particularly devastating—exacerbating the daily struggle to eat, stay warm, provide for children, and find shelter. By further entrenching people in poverty, the surcharge may force individuals to engage in petty crime for survival, further tying them to a criminal justice system from which they are trying to break free. Fear of arrest may also cause people to shelter in more remote areas, putting them farther from social services and supports.
  • For sex workers: This community may be pushed into more isolated areas of the city to evade police detection, thereby making their work more dangerous. Sex workers may also be forced to take on more clients (to recoup the financial losses caused by the surcharge) and forego important client screening processes to secure clients quickly. They may also be less likely to report dangerous clients to police, knowing that they themselves could be arrested for not paying the outstanding fine. All of this imperils human lives and safety.

The untenable choices forced on communities by the victim fine surcharge is a burden no compassionate, just society should endorse. We believe the mandatory surcharge must be abolished from the Criminal Code and are hopeful the nine justices of Canada’s Supreme Court will be guided by compassion and a human rights framework when weighing the facts of this important case.

Peter Kim, Communications & Digital Engagement Manager
Pivot Legal Society
604-229-6128 (cell)
[email protected]

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About Pivot Legal Society
Pivot Legal Society is a leading Canadian human rights organization that uses the law to address the root causes of poverty and social exclusion in Canada. Pivot’s award-winning work includes challenging laws and policies that force people to the margins of society and keep them there. Since 2002 Pivot has won major victories for sex workers’ rights, police accountability, affordable housing, and health and drug policy.