2016 QCCA 567, 2016 QCCA 567

Unofficial English Translation R. c. Cloud 2016 QCCA 567 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005575-145 (500-01-098201-137) DATE: April 5, 2016 CORAM: THE HONOURABLE JEAN BOUCHARD J.A. JACQUES J. LEVESQUE J.A. MARTIN VAUCLAIR J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. RICHARD JASON CLOUD RESPONDENT – Accused and ABORIGINAL LEGAL SERVICES OF TORONTO INC.

INTERVENER JUDGMENT [ 1 ] THE COURT; Ruling on the appeal from a judgment rendered on February 3, 2014, by the Court of Quebec (the Honourable Patrick Healy), District of Montreal, ordering the respondent to serve an intermittent term of imprisonment of 8 days followed by 24 months’ probation and imposing the payment of a $5 fine on the two counts to which the accused pled guilty; [ 2 ] The appellant seeks leave to appeal from the sentence; [ 3 ] For the reasons of Vauclair J.A., with which Bouchard and Levesque JJ.A. agree; THE COURT: [ 4 ] ALLOWS the motion for leave to appeal from the sentence; [ 5 ] ALLOWS the appeal from the sentence in part; [ 6 ] SETS ASIDE the fines imposed and the time limit to pay them in case No. 500-01-098201-137; [ 7 ] MAINTAINS the other orders rendered by the trial judge.

JEAN BOUCHARD J.A. JACQUES J. LEVESQUE J.A. MARTIN VAUCLAIR J.A. Mtre Dionisios Galiatsatos DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS

Counsel for the appellant Mtre Yves Vaillancourt CHALIFOUX, MONTPETIT, VAILLANCOURT, PARADIS & ASSOCIÉS Counsel for the respondent Mtre Jonathan Rudin ABORIGINAL LEGAL SERVICES OF TORONTO INC. Counsel for the intervener Date of hearing: February 18, 2015 REASONS OF VAUCLAIR J.A. [ 8 ] When sentencing, the judge’s objective is to impose a sentence that is proportionate to the gravity of the offence and the degree of moral responsibility of the offender.

The legislator first sets out the parameters in the statute and the judge then exercises discretion to formulate the sentence in order to satisfy the numerous facets that are applicable when a law is violated. The victim surcharge is a mandatory component of any conviction and since 2013, is an essential element of the parameters set by the legislator.

Is it therefore an element of the sentence’s proportionality, and if so, how must the judge take it into account? [ 9 ] Several appeals before the Court involve various aspects of the sentence, but the question that transcends the six appeals by the Crown and the appeal by the appellant Chaussé remains the effect of the mandatory nature of the surcharge on sentencing. [ 10 ] The applications for leave to appeal in Cloud , O'Farrell, Baron and Benoît were deferred to a panel, [1] as was the case in Phengsai , [2] whereas it was granted at the outset in Méthot . [3] Leave was also granted in Chaussé . [4] [ 11 ] Note that Aboriginal Legal Services of Toronto Inc. (ALST) obtained authorization to intervene in the debate in Cloud. [5] [ 12 ] All of the judgments were released today.

Cloud and Chaussé [6] encompass the substance of the reasons. [ 13 ] In the case of the respondent, Cloud, on February 3, 2014, the Honourable Patrick Healy of the Court of Quebec ordered him to serve an intermittent term of imprisonment of 8 days, taking into account the 82 days of pre-sentencing custody, followed by 24 months’ probation.

He also imposed the payment of a $5 fine on each of the two counts to which the accused pled guilty and granted him up to 30 days to pay them. [7] THE FACTS [ 14 ] The respondent pled guilty to a charge of mischief in relation to property under $5000 and a charge of assault with a weapon. He was arrested after knocking over bottles in a convenience store and throwing rocks at the employee on the premises, after first asking him to fight. The event took place in the moments after the respondent and his friend were expelled from the convenience store in question. [ 15 ] The respondent is Aboriginal.

He is cut off from his family and community, a reserve in New Brunswick. He has a lengthy criminal record, suffers from alcoholism and is unemployed. Homeless since adolescence, he presently lives in Montreal with his cousin. He is the father of one child, who is under the responsibility of the Director of Youth Protection. He receives income security benefits as well as $200 annually from the band council. He does not have a bank account.

In short, the judge concluded that he is indigent. [ 16 ] When the pleas were entered, the parties made a joint submission for a three-month prison term followed by 24 months’ probation. The surcharge was added and set at $400 because of the two convictions for offences that were prosecuted by indictment. [ 17 ] A difficulty appeared from the onset with regard to the issue of the surcharge and whether or not it had been taken into account by the parties when presenting the joint submission.

In principle, the surcharge is considered to have been taken into account by the parties because it stems from the application of the law. In this case, however, the evidence is contradictory in that regard. I conclude that the surcharge was not clearly considered, but this does not substantively change the way the judge must take it into account. THE DECISION [ 18 ] Faced with a joint submission and recalling his obligations in the circumstances, [8] the judge stated that he found the proposal acceptable, except for the victim surcharge that was added.

In his view, the surcharge was disproportionate and therefore violated the principle of proportionality of sentencing. [ 19 ] This surcharge is determined in accordance with subsection 737(2) of the Criminal Code , which provides for a surcharge of

$200 on each count that is prosecuted by indictment, or 30% of the amount of the fine. The judge pointed out that following the legislative amendments made in 2013, he no longer had the discretion to exempt an offender from paying this surcharge. [ 20 ] The judge was also concerned about his obligation to conduct the inquiry required in the case of Aboriginal offenders [9] under paragraph 718.2(

e) of the Criminal Code . The judge noted that, despite the time allotted to prepare, neither the defence nor the prosecution seemed to be aware of its parameters. [ 21 ] That being so, the judge was concerned about the victim surcharge. He was aware of the objective gravity of the offence and the respondent’s lengthy criminal record. Despite this, he considered that, in the circumstances, the imposition of a $400 surcharge contributed to rendering the sentence disproportionate and unreasonable.

Convinced that the surcharge was, in fact and in law, a fine that was an integral component of the sentence he had to impose, the judge concluded that an intermittent term of imprisonment of 90 days, from which he subtracted the 82 days of pre-sentencing custody, accompanied by a two-year probation order and a $5 fine on each count was the appropriate sentence. Pursuant to

section 737 Cr. C., the victim surcharge therefore fell from $200 to $1.50 on each count, i.e., 30% of the fine. He granted a 30-day period to pay. [ 22 ] The judge provided two guidelines for his reasoning. First, he acknowledged that no constitutional issues were raised and refused to address the issue from this angle. Second, he noted the indisputable legitimacy of the policy underlying the surcharge, i.e., the maintenance of a compensation regime for victims of criminal acts.

Clearly, for the judge, it was not a question of challenging the foundation of the measure from a constitutional standpoint or in terms of its appropriateness, but to determine if, as written, it could be reconciled with the objectives of the sentence. [ 23 ] The judge formulated six principles on which he based his response. [ 24 ] First, he noted that the wording of the provision left no room for discretion to waive its imposition (“ a mandatory order that must be imposed in every case with the sentence … ”).

It is mandatory. [ 25 ] Second, he determined that the victim surcharge “ is an integral element of a sentence ”. Noting that the effect of sections 673 and 785 of the Criminal Code is to allow the appeal from a victim surcharge greater than the minimum amount, he dismissed the notion that the victim surcharge was not part of the sentence.

Consequently, it had to comply with the objectives of proportionality and individualization. [ 26 ] Third, the judge concluded that the victim surcharge was not only part of the sentence, but that it was a minimum sentence in the form of an arbitrary amount aimed at holding the offender accountable. The fact that it is determined by a percentage of the fine, or a fixed amount according to the type of prosecution applicable to the offence, clearly denoted the arbitrary nature of the measure. Moreover, Aboriginal status was no longer relevant.

The judge found it difficult to explain how the objective of holding the offender accountable could be achieved with the surcharge. It certainly exacerbated the severity of the sentence, however, by being added onto any sentence or combination of sentences. [ 27 ] Fourth, the judge noted that the true nature of the surcharge is set out in

section 716 of the Criminal Code , where it is presented as the equivalent of a fine, i.e., a pecuniary penalty that is not restitution. He relied, inter alia , on Crowell , [10] in which the Nova Scotia Court of Appeal concluded that the victim surcharge must be taken into account in order to formulate an appropriate sentence. [ 28 ] Fifth, according to the judge, the surcharge is not a form of restitution recognized in Canadian law.

Section 716 Cr. C. specifically makes the distinction between restitution and other pecuniary penalties such as the surcharge. Contrary to actual restitution provided for in

section 738 Cr. C. , the fund created with the surcharges is indeterminate in nature and therefore does not compensate a specific victim or loss. [ 29 ] Sixth, the judge declined to follow the case law that forbids the combination of imprisonment, probation and a fine. He pointed to Cartier , [11] which authorized this in the case of an intermittent term of imprisonment. At any rate, according the judge, in mandatorily imposing the surcharge, which is a fine, the legislator permitted the combination of three punishments. Moreover, the judge considered that section 734(1)(

a) Cr. C . now allowed this. [ 30 ] At the end of the day, by imposing a sentence that combined imprisonment, probation and a nominal fine, the judge was seeking to lower the amount of the surcharge. As he explained at para. 51: I am bound, however, by the oath and dignity of my office. I cannot disobey the law now found in

section 737. But, even in the absence of a constitutional question, I can interpret that law in a manner that best conforms in law, principle and policy to the whole of

Part XXIII and the jurisprudence of the courts. This is what I will do by imposing a sentence composed of a term of imprisonment, a term of probation and a fine. The fine will diminish the applicable surcharge that would otherwise result in a disproportionate, unfit and unjust sentence. [ 31 ] According to the judge, the surcharge did not meet any sentencing objectives. There was no reason to believe that it helped to promote a sense of accountability in the respondent or an acknowledgement of the harm done to the victims and the community.

Everything led him to believe, however, that this additional sentence was contrary to the objectives of sentencing. He would have exempted the respondent from paying it, had it not been for the legislative amendment that eliminated this possibility. Thus, the judge determined that the victim surcharge was a sentence within the meaning of the Criminal Code , and consequently, a punitive element that he had to take into account.

THREE ISSUES IN DISPUTE [ 32 ] The Crown invoked three grounds to reverse the judgment of Healy J. First, it contended that the sentence was illegal because it combined imprisonment, a fine and a probation order, which is contrary to section 731(1)(

b) Cr. C. and the case law. [ 33 ] Then, the Crown contended that the judge erred in considering the victim surcharge as a fine within the meaning of the Criminal Code . [ 34 ] Finally, the Crown alleged that the judge knowingly bypassed the legislator's intent by imposing a symbolic fine of $5 in order to lower the surcharge. [ 35 ] I will go over each of these grounds. 1. Illegality of the sentence Contentions of the parties [ 36 ] According to the Crown, the joint submission was not only reasonable and should have been followed, but the judge imposed an illegal sentence [12] since section 731(1)(

b) Cr. C. forbids the combination of imprisonment, probation and a fine. This was also contrary to the judgments of this Court. The judge therefore failed in his task by not following the stare decisis rule because he did not agree with the law. [13] Nor could he set aside the case law of this Court under the pretext of the coming into force, in 1996, of the reform of

Part XXIII of the Criminal Code on sentencing. The principles remained the same, as acknowledged by the courts. [14] According to the Crown, the judge was wrong to characterize the surcharge as a fine and then contend that the legislator himself set aside the rule forbidding the cumulation of the three sentences due to the mandatory nature of the surcharge. [ 37 ] The ALST mainly supported the position taken by the judge. According to the ALST, it was not clear that a triple sentence was illegal. First of all, the intervenor proposed to set aside St-James and Biron , since they did not discuss the surcharge.

Moreover, since the 1996 reform, those decisions no longer represent the state of the law, given that proportionality has since become the focus of concern. More fundamentally, those decisions interpreted paragraph 731(1)(

b) Cr. C. restrictively in order to protect the offender against excessive sentencing. It would therefore be ironic to now interpret the paragraph in order to prevent this protection, which the addition of a nominal fine could do. The surcharge is indeed a sentence according to the ALST. Fines and restitution being the only monetary sentences that are recognized in the Criminal Code , the surcharge must be one or the other. Since the surcharge is not related to any prejudice sustained by the victim, it is not restitution. [15] Moreover,

section 716 Cr. C. provides that the payment of an amount of money is a fine. Therefore, if the surcharge is a sentence, then a triple sentence is possible. In any event, the triple sentence must be allowed in the case of Aboriginals so as to avoid perpetuating systemic racial discrimination. Analysis [ 38 ] The allegation is without merit. The sentence is not illegal.

As mentioned by the trial judge, the Court in Cartier concluded that it was possible to impose an intermittent term of imprisonment, a fine and probation. [16] [ 39 ] Contrary to the ALST’s argument, the specific issue is not whether the surcharge is a fine or whether the decisions of this Court should be set aside because they do not discuss the surcharge. I note in passing that none of the parties asked the Court to formally reconsider its previous decisions, and Cartier in particular, which, as Healy J. concluded, was fully applicable.

Consequently, in the circumstances, this decision provides a complete response to the Crown’s arguments regarding this first ground. [ 40 ] In Cartier , Proulx J. concluded that an intermittent term of imprisonment accompanied by a probation order and a fine did not contravene the rule stipulated in 731(1)(

b) Cr. C . It should be noted that the Court had intervened to impose an intermittent term of imprisonment of 90 days. [17] [ 41 ] Proulx J.’s reasoning was twofold. On the one hand, he considered that the legislator specifically authorized this sentence in section 732(1)(

b) Cr. C . On the other hand, the probation that accompanied the intermittent term of imprisonment was of a different nature because it was [ translation ] “limited to the period of time when the intermittent prison term is served”.

Thus, [ translation ] “the fine does not therefore constitute a third sentence, but a second one because the other sentence is composed of both the intermittent prison term and the probation”. [18] There would therefore never be three sentences in effect at the same time. [ 42 ] In short, I find that if the courts can only combine the punishments in the manner provided by the legislator, the latter can formulate a sentence in such a way that mandatorily involves several of them. In this sense, since the surcharge is mandatorily added to each sentence, the legislator chose to incorporate it into all sentences.

Section 737 itself provides that the offender is bound by the surcharge “ in addition to any other punishment imposed on the offender ”. It appears to me that this eliminates any doubt. [ 43 ] I propose to dismiss this first ground. 2. The judge erred in determining that the surcharge in

section 737 Cr. C. is a fine within the meaning of the Criminal Code [ 44 ] It is in the context of this ground that, in the background, the true issues emerge. I say in the background because the debate on the nature of the surcharge is slightly blurring the important issues of whether the surcharge is part of the sentence and how the judge must take it into account. Healy J. concluded that the surcharge was a fine within the meaning of the Criminal Code and was therefore

part of the sentence. He considered that the surcharge could be adjusted by imposing an additional fine in order to satisfy the principle of proportionality.

Contentions of the parties [ 45 ] The Crown contended that the surcharge is not a fine and relied on Crowell , in which the Nova Scotia Court of Appeal characterized the surcharge as a form of restitution. [19] The Crown clearly agreed with Chaussé , which came to the same conclusion. [20] This perspective allowed the Crown to justify that, since the surcharge is not a fine, it could accompany both imprisonment and probation because otherwise, and reiterating its first ground, all dual sentences would be illegal with the mandatory addition of this third sentence.

More particularly, according to the Crown, the surcharge cannot be a fine because it is incompatible with a discharge [21] or a conditional sentence. [22] Finally, in characterizing the surcharge as a form of restitution, the Crown mitigated the problem caused by the very broad definition of a fine provided by the legislator in

section 716 Cr. C . [ 46 ] The ALST, for its part, supported the judge’s conclusion and maintained that the surcharge is a fine, the main argument being that the legislator itself characterized it as such when he could have done otherwise. The ALST argued that the definition in

section 716 is eloquent. It states: a “ fine includes a pecuniary penalty or other sum of money, but does not include restitution ”. Moreover, restitution fundamentally obeys its own rules that are not applicable to the surcharge. Thus,

section 738 Cr. C . states that restitution is the payment of determined amounts in order to compensate the victim for liquidated damages that are specifically provided for. There is nothing of the sort for the surcharge. Analysis [ 47 ] By focussing their efforts on the issue of whether the surcharge is a fine or restitution, the judge and the parties lost sight of the unique and different character of the measure. The arguments of each party clearly show that the true nature of the surcharge is not that of a fine.

As rightly suggested by the Crown, a discharge or a conditional sentence is incompatible with the imposition of a fine. The true nature of the surcharge is not restitution either, such as it is defined in

section 738 Cr. C . Moreover, in

section 737 Cr. C ., the measure itself provides that the amount of the surcharge fluctuates when a fine is imposed, thus illustrating the necessary difference between them. [ 48 ] In my opinion, the definition proposed by the Nova Scotia Court of Appeal in Crowell is both accurate and complete. It reads as follows: The victim fine surcharge is a new concept in restitution : general, rather than specific restitution made by an offender, not to his or her own victim, but to victims of crime generally by creating a fund to provide them with certain services.

It is a statutorily imposed deterrent with perhaps a secondary relevance to reformation; its role as a deterrent is incidental to its fund-raising purpose . (p. 418) The victim fine surcharge is therefore neither a true tax nor a true fine, but rather a unique penalty in the nature of a general kind of restitution . As such it is penal in its pith and substance and therefore constitutional as a proper matter for parliamentary legislation under s. 91(27) of the Constitution Act, 1867 .

It must be taken into account by criminal court judges in crafting the sentences they impose . (p. 420) [Emphasis added.] [ 49 ] This

interpretation is consistent with the context and the parliamentary debates, which can serve to identify the objective that was largely being sought by the legislator. [23] Here is how the minister in charge at the time defended and explained the objectives of the surcharge before its introduction into the Criminal Code : …. The victim fine surcharge is one of the most important features of this Bill. This proposal further recognizes the entitlement of victims of crime to reparation, and the need for offenders to make amends for the wrongs suffered by their victims.

The purpose of the victim fine surcharge is to require the offender to provide redress not only for the harm done to the victim but to the community at large. The surcharge will assist offenders in the process of accepting responsibility for their crimes by requiring them to contribute to victim services within each province as part of the debt they owe to society . The victim fine surcharge will generate revenue to be applied by the provinces for the purpose of providing assistance to victims of crime.

The work of the Task Force and the Working group on Justice for Victims of Crime, the federal-provincial consultation process, and various research projects, have all highlighted the need for a stable source of funding for victim services. [24] [Emphasis added.] [ 50 ] In the amendments proposed in 2012, [25] the intention was not to change the objective of the measure, but its implementation, as illustrated in these remarks by Minister of Justice Rob Nicholson: The bill proposes three changes to the victims surcharge provisions of the Criminal Code .

The first change would ensure that the victim surcharge is imposed in all cases without exception by removing the option to waive the surcharge. Second, the offenders who are unable to pay the victim surcharge would be able to participate in the provincial and territorial fine option programs to discharge the amount owing. Third, the amount of the victim surcharge that an offender must pay would double under this legislation.

All three proposed amendments serve the same purposes: to promote a sense of responsibility in offenders for their actions, and to make offenders accountable to the victims whose lives they have affected . [26] [ 51 ] During the debates in the House of Commons, he added:

… They [ victim surcharges ] provide reparations for the harm done to victims and to the community and promote a sense of responsibility in offenders . [27] and: Victim surcharges form part of an offender’s sentence and they are consistent with the sentencing principles in the Criminal Code . [28] [ 52 ] The measure is in fact consistent with the objectives of sentencing set forth in

section 718 Cr. C .: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: … (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 53 ] With respect for the opinion of the trial judge, I find it easier to conceive than him that the measure is relevant in achieving these sentencing objectives. Does it do so successfully and usefully? These questions may appear legitimate; however, in principle, it is not up to the courts to rule on the efficiency of a penal measure. [ 54 ] In my opinion, the utility of determining whether the surcharge is either a fine or restitution is limited.

In fact, the judge undertook this interpretive exercise to support his conclusion that the surcharge was part of the sentence. As demonstrated by, among other things, the excerpts from the debates in the House of Commons, I am not convinced that this detour was necessary. [ 55 ] The surcharge is a unique measure, one that is neither a fine nor restitution within the meaning of

section 738 Cr. C . I concur with the Nova Scotia Court of Appeal in its conclusion that the surcharge is a unique penalty in the nature of a general kind of restitution. [29] [ 56 ] In short, I see no obstacle to the surcharge being neither a fine nor restitution, but rather a pecuniary sanction, an independent and original measure.

While the legislator clearly determined that, in many ways, it must be administered as a fine, this does not change its unique character and true nature. [ 57 ] That said, the surcharge falls under the part of the Criminal Code that deals with sentencing, and there is no reason to believe that the surcharge is not a part of it. It is not simply an indirect consequence of the sentence, a factor related to “ … the personal circumstances of the offender ”, [30] but is in fact an integral element of each sentence. Moreover, judges had to take it into account well before the 1996 reform of

Part XXIII of the Criminal Code on sentencing and well before the 2013 amendment that made the surcharge mandatory. [31] [ 58 ] The wording of the

section also provides a good indication of its true nature. I concur with the ASLT’s

interpretation according to which the use of the words “ in addition to any other punishment imposed on the offender ” expresses the legislator’s intent that the surcharge form part of the punishment as a whole.

That text has hardly changed since the measure was introduced into the Criminal Code in 1989. [ 59 ] According to the Supreme Court, a “ … consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing ”. [32] I consider this to be the case. [ 60 ] It should be added that in 2012, the Minister of Justice himself was convinced that the surcharge was part of the sentence: The Honourable Rob Nicholson: One of the things that we have made very clear in the legislation is that now it is going to be imposed; there will not [be] a waiver of it at the time of sentencing.

This is a part of the sentence . If you get a fine there will be an automatic 30% increase for victim services. We have doubled the victim surcharge for all

summary and indictable offence convictions in this country. It's going to be across the board. This is going to be built in to the Criminal Code when this bill hopefully is passed out of this committee and gets third reading, and proceeds to the Senate and then royal assent. This will be part of the laws of this country. I think the majority of Canadians will welcome this.

I think this is a step in the right direction, as you can tell. [33] [Emphasis added.] [ 61 ] Upon its introduction to the Criminal Code and until the amendments that made it mandatory, the surcharge fell under the discretion of the judge who weighed the appropriateness of imposing this measure because of the unjustified prejudice that it could cause. Once again, the fact that it is now mandatory does not really change its true nature. 3.

The judge erred in knowingly bypassing the legislator’s intent by imposing a symbolic fine [ 62 ] The judge concluded, and in my opinion, rightfully so, that the surcharge was part of the sentence, but chose to impose a symbolic fine in order to reduce its impact. The Crown contended that, in doing so, the judge bypassed the legislator’s intent. I think the Crown is correct. Contentions of the parties

[ 63 ] According to the Crown, the symbolic character of the fine shows the judge’s intention to thwart the legislator’s objective. Counsel for the Crown’s tone was firm, and he criticized the judge for assessing the constitutionality of the provision when the issue was not before him. Rather, he should have applied the law, which is presumed to be constitutional. The legislator was entitled to put an end to the many unjustified exemptions by imposing the mandatory surcharge.

Moreover, there was nothing to suggest that the offender could not carry out community work. [ 64 ] The intervenor considered that the judge respected the legislator’s intention. He expressly stated that he was not going against the legislator’s intent. According to the ALST, in applying the Criminal Code , the judge was promoting the legislator’s intent. Analysis [ 65 ] The judge’s solution, i.e. imposing a $5 fine, bypasses the law and the clear expression of the legislator’s intent that each conviction be accompanied by a minimum surcharge.

To paraphrase Binnie J. in Wu , the judge in fact neutralized the mandatory minimum surcharge regime established by the legislator. [34] [ 66 ] The legislator’s intent is all the more clear given that it results from the repeal of the text that allowed payment to be waived. Even in sentencing matters, where discretionary power is central, the legislator’s power to limit it is evidently recognized. [35] [ 67 ] I am of the opinion, however, that the Crown misunderstood the judge’s approach. By applying the law as written, he was instead trying to ensure that the principle of proportionality was respected.

The divergence of opinions regarding the way of doing things does not make that of the judge an unconsidered affront to the legislator’s intent, as suggested by the Crown in its factum and arguments. [ 68 ] The surcharge is part of the sentence. For this reason, eliminating the consideration of the offender’s ability to pay is surprising.

The surprise lies in the fact that Wu [36] points out, to paraphrase Binnie J., that the imposition of a monetary sentence without regard for the offender’s ability to pay creates an exception to usual sentencing principles, and especially so, we might add, in the case of a minimum and arbitrarily determined fine. Since proportionality “ is the sine qua non of a just sanction ”, [37] even a principle of fundamental justice according to some, [38] the appropriateness of such an arbitrary measure that, as wrote the trial judge, logically and certainly has major consequences for indigents, may be questioned.

Like the trial judge, I acknowledge that the amounts can become significant, even for the employed. [ 69 ] The adoption of such a rigid measure appears to be the consequence of perceived laxity due to too many exemptions and the perception that the suggested amounts are minimal: The Honourable Rob Nicholson: The research suggests that the noticeably higher waiver rate for offenders receiving custodial sentences is due to a blanket waiver policy for offenders who are sentenced to imprisonment as opposed to proof of hardship to the offender or his or her family. … That's right.

They either provide time for the individual or they work with the individual. They send out certain notices to do this. Again, we're not talking about huge amounts. We're talking about $100 or $200 for the people convicted of crime. [39] [ 70 ] It is not up to the courts, however, to rule on questions relating to the appropriateness of legislating. [40] What is more, unless it is declared unconstitutional, a minimum sentence must be applied. [41] [ 71 ] The surcharge is not a comprehensive sentence, but it is a minimum and mandatory component of the sentence to come.

Since it stems from the law and not an order from the judge, [42] it cannot be reduced and must be incorporated in its entirety to the sentence. [ 72 ] The legislator decided that each sentence must integrate the surcharge, the amount of which is fixed by law. The judge was right to conclude that he had to take it into account in sentencing. [ 73 ] In order to formulate a proportionate and individualized sentence, the judge must deal with this mandatory element of the sentence in addition to the other penal obligations imposed by the law, such as that indicated at paragraph 718.2(

e) Cr. C . [ 74 ] I readily admit that the legislative choice gives rise to difficulties that could be discussed in another context. When pronouncing the sentence, however, the judge cannot impose fines that do not and cannot have a consistent penological objective other than neutralizing the surcharge. [ 75 ] When determining the sentence, the judge must take into account the principles of totality and proportionality, which include a monetary charge, the surcharge or the equivalent in community work. Lawyers must do the same when considering a joint submission.

The impact will be more or less significant according to the case and the offender. Moreover, the Criminal Code makes it possible, in the presence of substantial evidence and a legitimate objective, to ask the court to modify the parameters of the surcharge. [43] [ 76 ] In my opinion, judges should not concern themselves with potential imprisonment for failure to pay because, as I explained, incarceration would only take place after the offender truly decided not to pay the surcharge and not to carry out the community work. The resulting imprisonment is thus not part of the sentence.

It is a penalty set out in the process to force the payment or the execution of the community work. [44] [ 77 ] That said and for these reasons, I am of the opinion that the judge erred in his approach to the surcharge; he should not have imposed a nominal fine to neutralize its effect. If he considered that the proposed sentence was disproportionate, it was his role to intervene with regard to the other elements of the sentence while taking this monetary penalty of $400 into account.

[ 78 ] For these reasons, I propose to allow the motion for leave to appeal, and I am of the opinion that the appeal must be allowed in part for the sole purpose of setting aside the orders pronounced with regard to the fines. MARTIN VAUCLAIR J.A.