Authors): Joyce M. Bernasek, Dominic Duchesne
September 9, 2022
Last August, the Government of Canada launched its Advance Consultation Paper (the Consultation Paper) to seek feedback from stakeholders and vulnerable members of the public on the criminal interest rate and availability of high cost often offered by other lenders.
Although the Government of Canada’s policy objective has not yet resulted in a new criminal interest rate, a reduction in the criminal interest rate could have market implications for lenders and borrowers.
Interest rates in Canada must not exceed 60% – section 347 of the Criminal Code
When first introduced in 1980, the criminal interest rate was established to deter loan sharking and other predatory lending practices. Section 347 of the Criminal Code (the Code) makes it an offense to: (1) enter into an agreement or arrangement to receive interest at a rate greater than 60% of the total value of the credit advanced; and (2) actually receive interest in excess of 60% of the total value of the credit advanced. It should be noted that the Code broadly defines the concept of “interest” to include costs, fines, penalties or commissions. Overdraft fees and discharge fees also fall within the scope of what would be considered “interest”. Although the consultation paper discusses high-cost installment loans, it is important to note that some payday loans are exempt from the Code.
High Cost Installment Loans
The consultation paper targets alternative lenders in their offering of what are universally considered “high cost loans” or “high interest” loans. Alternative lenders provide loans quickly with less stringent requirements and offer longer-term, higher-cost installment loans. The consultation document reveals that these installment loans have interest rates of up to 47% per year. With additional fees and charges included, and with frequent compounding interest, many of these installment loans equate to having an overall annual interest rate just below or nearly equal to the criminal interest rate of 60%.
A rate set at 60% for 40 years
The Consultation Document undertakes to better understand the impact that such a rate cut could have on the market and on the availability of financial products as we know them. As the consultation document points out, the criminal interest rate is a fixed rate not linked to market rates. When the criminal interest rate was introduced, the Bank of Canada’s overnight rate was 21%. At that time, the gap between the overnight rate and the criminal rate was 39%. Today, the gap is close to 60%. Thus, the Government of Canada wishes to know whether the interest rate pricing set by other high-cost lenders reflects the actual credit risk of the borrower, or whether the interest rates of these high-cost financial products are fixed simply respect the ceiling authorized by the penal interest rate.
Considerations for Lenders
Responses to the consultation paper are expected by October 7, 2022. Any changes to the criminal interest rate would apply to all credit products in Canada and affect a wide range of borrowing products on the market. If you or your business need help determining the potential impact of a lower criminal interest rate, please do not hesitate to contact the authors of this article.