INTRODUCTION AND BRIEF DESCRIPTION
Offenders can be exempt from victim surcharges if they can prove undue hardship to themselves or their dependants.
SECTION WORDING
737(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1).
EXPLANATION
Section 737(5) of the Criminal Code of Canada provides a mechanism for offenders who have been ordered to pay a victim surcharge to apply for an exemption from the payment of that surcharge. The victim surcharge is a mandatory fee imposed on offenders as part of their sentence, with the proceeds going to victim services programs in the province or territory where the crime was committed. An offender may apply to the court for an exemption from the victim surcharge if they can establish to the satisfaction of the court that paying the surcharge would cause undue hardship to them or their dependents. This means that the court must be convinced that the offender does not have the financial resources to pay the surcharge, and that paying it would result in significant financial hardship for either the offender or their dependents. In making this determination, the court may consider a range of factors, such as the offender's income, employment status, and financial obligations. The court must balance the need to provide adequate support to victims of crime against the potential undue hardship to the offender or their dependents. It is important to note that an order exempting an offender from the victim surcharge is not automatic, and the offender must make an application to the court for this relief. Furthermore, the court's decision to grant or deny an exemption is not subject to appeal. In summary, section 737(5) of the Criminal Code of Canada provides a mechanism for offenders to seek relief from the mandatory victim surcharge if they can demonstrate that paying the surcharge would cause undue hardship to them or their dependents. However, this exemption is not automatic, and the court must carefully consider the financial circumstances of the offender in determining whether to grant the exemption.
COMMENTARY
Section 737(5) of the Criminal Code of Canada provides offenders with a legal avenue to apply for exemption from the application of victim surcharges. The section becomes relevant when an offender has been found guilty of an offense and the court has ordered a victim surcharge as part of the sentence. The victim surcharge serves as a way to provide financial assistance and support to victims of crime. However, the criminal justice system recognizes that situations may arise in which paying the victim surcharge may cause undue hardship to the offender or their dependents. Undue hardship can be defined as a situation in which paying the victim surcharge would cause significant financial strain, especially if it would result in a significant decrease in the standard of living for the offender and their dependents. Dependents may include children, elderly parents, or any other individuals who rely on the offender for financial support. The section stipulates that in order to be exempted from the victim surcharge, the offender must establish to the satisfaction of the court that such payment would result in undue hardship. This means that the offender has to provide evidence of their financial situation and how payment of the surcharge would negatively affect their financial circumstances. The court will assess the evidence presented and make a determination based on the facts of the case. It is important to note that when an offender applies for exemption from the victim surcharge, the burden of proof is on them to establish undue hardship. This requires the offender to provide clear and compelling evidence of their financial situation. In essence, this section provides a safeguard against potential injustice and ensures that the financial burden placed upon offenders is fair and just. Exempting the offender from the victim surcharge does not mean that the victim will be left without support. The victim surcharge is an important mechanism for providing financial support and assistance to victims of crime, and its importance cannot be overlooked. However, exemption may be necessary in situations where the offender has a limited ability to pay and would result in significant hardship. Importantly, while this section recognizes the potential for undue hardship, it does not provide a free pass for offenders to avoid paying the victim surcharge. The application for exemption is subject to the approval of the court, and the offender must go through the process of proving undue hardship for consideration. In conclusion, section 737(5) of the Criminal Code of Canada recognizes that there may be situations in which offenders cannot afford to pay the victim surcharge, and as such provides an avenue for exemption in such cases. However, it is important for offenders to provide sufficient evidence of undue hardship in order to be granted exemption. This section provides a safeguard against potential injustice and ensures that the imposition of financial burdens is fair and just.
STRATEGY
Section 737(5) of the Criminal Code of Canada provides an opportunity for offenders to request an exemption from paying the victim surcharge when it causes undue hardship to themselves or their dependents. This provision has received both criticism and support, as it attempts to balance the rights of victims with the financial burden placed on offenders. Several strategies could be employed when dealing with this section of the Criminal Code of Canada. One of the main strategic considerations for offenders is to establish to the satisfaction of the court that they or their dependents will face undue hardship if they are required to pay the victim surcharge. This can be achieved by demonstrating that the payment would result in financial hardship that goes beyond normal financial obligations, such as rent, bills, and groceries. It is important for offenders to present all relevant evidence, including financial records, personal circumstances, and any other information that may support their application for exemption. Another key strategy for offenders is to engage legal counsel to assist them in navigating the court process and presenting their case effectively. A competent lawyer can provide essential guidance and advocacy throughout the court proceedings, increasing the chances of success in obtaining exemption from the victim surcharge. Additionally, a lawyer can assist offenders in appealing any unfavourable decisions or negotiating with prosecutors to secure a more favourable outcome. Victims of crimes may also have an interest in this provision of the Criminal Code. In cases where the offender is unable to pay the victim surcharge, victims may consider advocating for exemption or reduction in the surcharge. This may require engaging with prosecutors or the courts to demonstrate that the surcharge would not meaningfully benefit them and could lead to further financial difficulty for the offender. Victims may also be able to provide evidence regarding the circumstances surrounding the offense and the offender's ability to pay. Ultimately, the success of an application for exemption under section 737(5) of the Criminal Code of Canada will depend on the specific circumstances surrounding the case. Strategic considerations may include gathering and presenting relevant evidence, engaging legal counsel, and engaging with prosecutors or victims where appropriate. By navigating this process effectively, offenders may be able to alleviate the financial burden of victim surcharges while still acknowledging the harm caused by their actions.