Imagine you are a truck driver hauling a heavy load of fertilizer through the wide-open prairies near Regina. You are focused on your route, but a single wrong turn puts you on a road that was never designed to handle the weight of a massive semi-truck and trailer. Suddenly, you find yourself facing a massive fine for violating provincial weight restrictions.
While most people would expect to pay a penalty for such a mistake, few would anticipate that the government would tack on an additional bill worth thousands of dollars just because the first fine was so high. But that happens every single day, through a legal process called Victim Fine Surcharges.
When a person is convicted of an offence, provincial law automatically applies a surcharge on top of the fine. In British Columbia, the surcharge is 15%.
A recent Saskatchewan case considered the constitutionality of this process, which basically amounts to a tax paid on fines paid tot he government. In that case, the surcharge was 40% and added a staggering $6,394 to the total amount. While the accused accepted the base fine as part of the cost of doing business, he challenged the constitutionality of the surcharge, arguing that forcing someone to pay such a massive, non-negotiable amount constituted cruel and unusual punishment.
Section 12 of the Charter protects every Canadian from being subjected to treatment or punishment that is so excessive it outrages standards of decency. The defence pointed to a very famous decision from the Supreme Court of Canada called R. v. Boudreault. In that case, the court struck down the federal government’s mandatory victim surcharge for criminal offences. The Supreme Court ruled that making those surcharges mandatory, without giving judges the power to waive them for people who are poor or struggling, violated the Charter because it could lead to a precarity of liberty. People could end up in a cycle of debt or even in jail simply because they lack the money to pay a tax-like fee.
The lower court judge agreed that the Saskatchewan surcharge looked a lot like the federal one that the Supreme Court had already declared unconstitutional. It ruled that the provincial law was of no force or effect because it didn’t allow judges to consider a person’s ability to pay. This was a significant victory, but it was short-lived. The Attorney General for Saskatchewan appealed the decision, taking the matter to the Court of King’s Bench to decide if the Boudreault precedent actually applied to provincial highway tickets.
The Saskatchewan Court of King’s Bench eventually overturned the lower court’s decision.
The court explained that while the Supreme Court struck down the surcharge in the Criminal Code, that ruling did not automatically apply to provincial, non-criminal laws like those governing traffic. The judge noted that previous decisions had already established that these provincial surcharges are a separate matter entirely. Essentially, the court argued that the context of a highway moving violation is vastly different from a criminal conviction that carries the heavy stigma of a crime.
A major factor in the ruling was a legal principle known as comity. This is a concept that encourages judges to follow the previous decisions of their colleagues in the same court. Unless there are exceptional circumstances, it is a disservice to litigants, lawyers, and inferior courts for one judge to ignore what other judges have already decided. Since other King’s Bench judges had already ruled that the provincial victim surcharge was constitutional and did not engage the Charter‘s protection against cruel and unusual punishment, the Court felt bound to maintain that consistency. It stated that it is the job of higher Courts of Appeal, not individual trial-level judges, to overturn established provincial law.
The court also addressed the practical mechanics of how these surcharges are collected.
Under Saskatchewan law, any money a person pays toward their ticket must first go toward the surcharge in full before a single cent is applied to the actual fine. The accused argued this creates a risk of jail for those who cannot pay the combined total. However, the court remained firm in its stance that provincial regulatory offences do not trigger the same Charter concerns as criminal ones. The judge concluded that there was no legal basis in this specific context to find that Section 12 of the Charter was violated.
In the end, the appeal was allowed, and the $6,394 surcharge was reinstated. The court did show a small measure of leniency by granting 12 months to pay the total amount, acknowledging the significant financial burden.
Provincial regulations, from speeding tickets to environmental fines, often carry their own set of rules that exist outside the traditional criminal justice system. While the Supreme Court of Canada may have protected criminal defendants from mandatory surcharges, those same protections have not yet been extended to those facing provincial tickets.
And although this case is from Saskatchewan, the law is currently the same in British Columbia. For now, the 15% extra on top of large provincial fines remains a reality for BC drivers.
