R. v. Madeley, 2016 ONCJ 579

CITATION: R. v. Madeley, 2016 ONCJ 579 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Sunshine Madeley Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision (Section 1 and the Victim Surcharge, equality rights challenge) Released September 28, 2016 Ms. Louise Tansey ………………………………………………………………..for the Crown Mr. Tobias Okada-Phillips…...………………………………………………….for the Accused Paciocco J. I. Introduction [1] On March 1, 2016 I ruled that the mandatory victim surcharge provided for in Criminal Code

section 737 contravened theequality rights provision in

section 15 of the Charter. Argument on whether that breach could be saved under

section 1 of the Charterwas then scheduled, and has now been heard. For the reasons that follow, the Crown has failed to demonstrate that

section 737 is areasonable limitation upon Ms. Madeley’s

section 15 rights. I will not, therefore, be imposing the victim surcharge on Ms. Madeley. [2] The formula for imposing a “reasonable limitation” on a Charter right by a “proscribed law” is well settled: “[T]he Attorney General of Ontario must show that the law has a pressing and substantial objective and that the means chosen areproportional to that objective.

A law is proportional if (1) the means adopted are rationally connected to that objective; (2) it isminimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. vOakes (SCC), [1986] 1 S.C.R. 103.”: R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773 at para 111. II.

The Pressing and Substantial Needs Requirement [3] The first pre-requisite – that the law have a pressing and substantial objective – is meant to ensure that before a law can bejustified as a reasonable limitation on a constitutional right, the role fulfilled by that law must be an important one.

As familiar as thisrequirement is, there was disagreement before me relating to the manner in which this requirement operates. [4] The Crown urged that the post-amendment victim surcharge has a dual purpose – (1) raising funds for victim services, and (2)holding offenders accountable for the costs of victim services: R. v. Larocque 2015 ONSC 5407 at paras 27-28; R. v. Barinecutt 2015BCPC 269 at para 5, and R. v. Michael 2014 ONCJ 360 at para 8. [5] When initially passed, the victim surcharge may only have been concerned with the first general function of raising funds forvictim services.

This general function was unquestionably augmented when the provision was amended to delete the discretion judgeshad to waive the victim surcharge in cases of “undue hardship,” a change that occurred as a result of “The Increasing Offender’sAccountability to Victims Act,” S.C., 2013, c. 11. In keeping with the name of that enactment, Minister of Justice Peter McKay explainedin an “Inquiry of Ministry” issued on December 6, 2013 that “[t]he purpose of the victim surcharge is to make offenders accountable tovictims who have been harmed by the crime committed and to society in general.”[1] [6] Ms.

Tansey, for the Crown, described these dual general purposes – (1) raising funds for victim services, and (2) holdingoffenders accountable for the costs of victim services - as “important social objectives,” and contended that they are pressing andsubstantial. [7] If the proper way to conduct a “pressing and substantial objective” inquiry was indeed to look solely at the general objectives ofthe legislation, as a whole, this inquiry would be a simple matter. I would agree with Ms. Tansey.

[8] I would be persuaded, on the balance of probabilities, that the first of these purposes – raising funds for victim services – is apressing and substantial goal. The Crown has demonstrated through the material that it has filed that victim surcharge funds are used fora range of compelling purposes to assist crime victims, and that assisting crime victims supports the repute and efficiency of theadministration of justice. [9] I would also be persuaded that holding offenders accountable to victims and to the public for victim services is a pressing andsubstantial objective.

Accountability to the public is, after all, a central objective for sentencing proven offenders, which is the ultimateoutcome of a criminal trial. Given the increased attention given to victims in the criminal process, so, too, is accountability for harm doneto victims.

Ultimately, the provision of victim services has enriched the criminal justice system, and the goal of having convictedcriminals pay for victim services can fairly be seen by a government to be a pressing and substantial objective. [10] In my view, however, the question is not simply whether the overall objectives behind the impugned legislation are pressing andsubstantial. A proper

section 1 evaluation must respond to the specific Charter challenge under consideration. A

section 1 inquirytherefore requires consideration of the more context-specific question of whether the objectives of the legislation that cause compromiseto Charter-protected interests are pressing and substantial. [11] In Vriend v Alberta (SCC), [1998] 1 S.C.R. 493, for example, the Supreme Court of Canada was evaluating theconstitutional validity of the Individual’s Rights Protection Act, R.S.A. 1980. C. 1-2, given its failure to include protection fromdiscrimination based on sexual preference.

The Court did not determine whether the overall objectives that inspired the human rightscode of protecting human dignity by preventing discrimination, were pressing and substantial. Instead, the Court looked at whether thepurpose or reason for overriding the constitutional protection at stake was pressing and substantial. This inquiry required consideration ofwhether the purpose behind the Charter mischief – namely, excluding sexual preference from legislative protection in prima facieviolation of

section 15 – was compelling enough to warrant overriding the

section 15 interests that were compromised. As the Court putit, at para 109: “Section 1 of the Charter states that it is the limits on the Charter rights and freedoms that must be demonstrably justified in a free anddemocratic society. It follows that under the first part of the Oakes test, the analysis must focus upon the objective of the impugnedlimitation, or in this case, the omission.

Indeed, in Oakes, supra, at p.138, Dickson C.J. noted that it was the objective ‘which themeasures responsible for a limit on a Charter right or freedom are designed to serve’ (emphasis added) that must be pressing andsubstantial.” [12] The Vriend Court ultimately held that while the general goals of the enactment are pressing and substantial, no pressing andsubstantial purpose was identified for excluding sexual preference from protection, and so the legislation at issue in that case could notbe saved by

section 1. [13] Ensuring that the objective that is considered relates to the constitutional mischief at a stake is sensible. Had the Court askedonly about the general objectives of the legislation, the inquiry would have lost its context, and its purpose, which is to determinewhether the reasons for over-riding a Charter right are compelling enough to justify doing so. [14] A properly focused inquiry therefore requires consideration of whether the legislative purpose relied upon by the state to justifythe prima facie Charter mischief is pressing and substantial.

In the instant case, the Charter mischief at stake is the unequal impact ofthe victim surcharge on the mentally disabled. That Charter mischief arises from the decision of the legislature to make the victimsurcharge “universal,” regardless of any undue hardship that may be caused. The examination must therefore be focused to respond tothe question of whether there is a pressing and substantial purpose for having a mandatory, universally applied, victim surcharge. [15] Although the Crown arguments did not pose the

section 1 question in precisely this way, it is evident from its argument generallythat the Crown position is that the objective in creating a universal victim surcharge by repealing the “undue hardship” discretion was toprevent judges from waiving the victim surcharge arbitrarily, or absent good reason.

Essentially, the submission is that there is a pressingand substantial need to make the victim surcharge universal in order to ensure that judges do not waive the surcharge in cases where theoffender is able to pay. [16] The Crown sought to show the improper use of judicial discretion to waive the victim surcharge by providing statistics fromstudies in the early 1990s confirming “lower than expected” revenue rates for victim surcharges, including a study in 1994 that, acrossCanada, victim surcharges were imposed in only 15% of cases. It also relied upon comments made by judges, including in R. v.

Cloud2014 CarswellQue 742 (PC), overruled 2016 QCCA 567 , 2016 JQ no 2819 (Que. C.A.), and R. v. Novielli 2015 ONCJ 192, thatjudges often waive the victim surcharge without express request or without extensive reason, and that this is done as a matter of course inQuebec where prison sentences were imposed. [17] I am prepared to disregard the antiquity of the studies and proceed on the basis that during the periods under study the victimsurcharge was often not imposed.

What is not shown decisively is that there was a pattern of the victim surcharge being waived byjudges in the absence of “undue hardship.” [18] No information was presented, for example, demonstrating base correlation rates between poverty and criminal conviction. Thismatters because those familiar with the day-to-day operation of provincial courts, which do approximately 96% of all criminal business,appreciate that mental illness, addiction and unemployment are prevalent among offenders, and that there is a positive correlationbetween socio-economic status and prosecution.

It can be expected, in light of this, that poverty-based waiver rates will be high, withoutany suggestion of arbitrary or improper decision-making. The precise frequency with which poverty is present in offenders is unclear. Inmy view, without more information about the correlation between poverty and prosecution, even the statistics offered by the Crown areincapable of establishing widespread abuse of the victim surcharge discretion. [19] What of the evidence presented by the Crown suggestive that waiver occurs frequently in cases of imprisoned offenders?

As aproposition of common sense, there is apt to be additional hardship in the payment of surcharges by those who are not at liberty to work,and who lose their means of livelihood - including social assistance - while incarcerated. Yet the impact of imprisonment on unduehardship was not explored by the Crown. It was simply assumed by the Crown in its evidence that frequent waiver in cases of

imprisonment is proof of improper waiver.[2] [20] Indeed, no evidence was placed before me to show that victim surcharges are commonly waived over the objection of, or withoutthe consent of the Crown. Indeed, not a single transcript was offered of a case in which a victim surcharge was waived over Crownobjection, and I can say anecdotally that this is not something I had ever seen until after the victim surcharge was made universal. [21] Finally, no evidence was presented to show that judges, rather than courts administration, were responsible for low impositionrates.

Even under the old regime, the “victim fine surcharge,” as it was then called, was the default position, to be added in the absence ofany judicial order. A judge’s order was required only to exempt an offender. If the systems put in place by the Ministry recorded victimsurcharges only when addressed overtly by judges, the failure to record and collect victim surcharges in other cases was not because ofexcessive use of judicial waiver but because of administrative error.

Yet no effort was made to plumb the source of the problem. [22] To be clear, I am not relying on anecdote or judicial notice as establishing that judges are not responsible for the low impositionrates, or to disprove the theory of widespread arbitrary or improper waiver. I am, however, illustrating that there are factual issuesrelevant to whether this is so that the Crown has not addressed in its evidence.

It has presented an anemic evidentiary record on which tofind affirmatively that improper use of the judicial discretion was indeed a pressing and substantial problem when universality wasintroduced. [23] Having said this, and continuing to bear in mind the burden resting on the Crown, I am not prepared to resolve the

section 1 issueon the “pressing and substantial” question. As the Supreme Court of Canada recognized in R. v. Sharpe [2001] S.C.R. 45 at paras 85-94(albeit in the “rational connection” context) it is too imposing a standard to expect Parliament to wait for scientific verification of themischief that the legislation is targeted to address.

In the public interest, Parliament is entitled to act “on a reasoned apprehension ofharm.” On a generous review of the material before me, when the victim surcharge legislation was amended to impose the universalityrequirement, there may have been a realistic foundation for the government apprehending that low rates of imposition of the victimsurcharge were materially attributable to the improper use of the “undue hardship” discretion. If this were true, it would be a pressing andsubstantial problem worth addressing, and on that basis I will proceed on the assumption that the first leg of the

section 1 Oakes test hasbeen met. III. Proportionality a. The Rational Connection Requirement [24] The “rational connection” component of the

section 1 test is meant to ensure that before legislation compromises constitutionalrights, it must be a rational way of pursuing the legislative agenda. [25] In my view, performing the “ectomy” of removing all discretion may be radical surgery, but it is not an irrational way of trying toend abuse of that discretion. One way to stop abuse of a power is to remove the power.

There is therefore a rational connection betweenthe legislation and the objective of universality. [26] Of importance, universality is also a rational way of promoting the underlying objectives of the legislation of (1) raising fundsfor victim services, and (2) holding accused persons accountable to the community and to their victims, which the objective ofuniversality is believed to support. [27] By ensuring that victim surcharges can never be waived, improper waiver cannot occur, and greater recovery for victim servicescan be achieved, thereby promoting the first general objective of raising funds for victim services. [28] I understand Mr.

Okada-Phillips’ objection that requiring persons who cannot reasonably be expected to pay, whether because ofmental disability or otherwise, is not a rational way of securing funds for victims. I agree with this, but, as indicated, by requiringeveryone to pay, those who can pay and who may otherwise have been granted unmeritorious waivers, will be caught. As I say, this is arational way of increasing funds for victim services, satisfying the rational connection test. [29] By removing the prospect of improper waiver, a greater number of offenders are apt to pay.

This would result in a greater numberof offenders being accountable for the costs of victim services. The second general objective of the legislation is therefore also served byuniversality. [30] Once again, I understand Mr. Okada-Phillip’s concern that it is not rational to institute a scheme of flat fee surcharges onsentences that have already been tailored to hold offenders to account for their crimes, in order to hold offenders to account to the publicand to victims. Properly conceived, however, the role of the victim surcharge is meant to hold offenders accountable for the costs ofvictim services.

Increasing the number of individuals capable of being caught by this scheme rationally promotes this objective. [31] I find that the rational connection requirement is therefore met. b. The Minimal Impairment Requirement [32] The minimal impairment precondition requires that a law must represent a reasonable means of achieving the least harmful wayof achieving its legislative goals.

This requires a court to consider whether alternative means were available to Parliament that wouldachieve the same objective or would achieve the ‘same’ objective as effectively [while impairing Charter rights less significantly]”: R.v. Chaulk (SCC), 1990 CarswellMan 239 at para 74.

[ 33 ] I find that the Crown has not proven that this requirement has been met. None of the points raised by the Crown – (1) that this is the first modification of the victim surcharge since 1999, (2) that social circumstances have changed with increased awareness of victims, (3) that no principles of fundamental justice are engaged when those who can pay do so, (4) that there are no consequences for those who are too poor to pay, and (5) that the victim surcharge does not rise to the level of cruel and unusual treatment or punishment – have anything to do with the minimal impairment issue relating to

section 15, even disregarding that the claim made in point (4) is an attempt to re-litigate findings I made to the contrary when I found a prima facie violation. No attempt was made by the Crown to present evidence to address the minimum impairment issue, or to call upon uncontested facts that would support a finding in the government’s favour. This alone is enough to cause the Crown’s

section 1 application to fail. [ 34 ] In keeping with my responsibility of ensuring that I consider alternative means, I have gone on, however, to consider whether there were alternative means of achieving the legislative goals. There are at least two less intrusive alternative strategies, apt to be effective in preventing improper waivers that suggest themselves. [ 35 ] First, one far less intrusive way to address the improper use of discretion by a sentencing judge is for the Crown to appeal improper waivers.

I was not presented with a single example of a case in which the Crown has sought the assistance of the appellate courts to ensure that a trial judge has properly exercised their discretion to waive the victim surcharge. By pushing the issue up the appellate ladder, the Crown could secure clear direction, binding on trial judges as to the proper reach of their discretion, but it has not done so. [ 36 ] I am mindful that not all judicial decisions can realistically be appealed. There are priorities.

There is no reason I can identify, however, why a test case could not have been taken to confirm the outer limits of what constitutes “undue hardship,” or what kind of evidence of “undue hardship” is required. I cannot find that a legislated removal of a discretion is a minimally impairing measure, without the Crown even having tried to secure binding appellate precedent that would address improper waivers. [ 37 ] Nor could it be contended that judges are not apt to follow appellate guidance, making it necessary to remove entirely the judicial discretion to avoid the imposition of surcharges.

That conclusion would be a slur on the integrity of judges, and on an entire administration of justice that depends on fealty to precedent to operate. The process of resolving Charter issues depends upon reasonable inference, and the administration of justice has to proceed on the assumption that judges will follow appellate directives. I certainly have no evidence to the contrary. [ 38 ] I have considered whether it is appropriate under a

section 1 analysis, to consider less impairing solutions that lie in the hands of other branches of government. In my view, it is appropriate to do so. It would be an unfortunate outcome to confine analysis to legislated solutions, since this would mean that one branch of an indivisible government can react in a way that compromises the Charter rights of individuals because another branch of government is not showing interest in solving a pressing and substantial problem within its control. A better approach would be to expect the Crown during a

section 1 application to show that the Government of Canada at least attempted to encourage prosecuting Crown agencies to try to solve a problem using the appellate mechanisms in place before Parliament resorts to Charter compromising legislation as an ostensibly minimally impairing solution. [ 39 ] In any event, objections about jurisdiction do not address the second, obvious alternative measure that suggests itself.

No attempt was made by Parliament to develop a legislated definition of “undue hardship,” or to recast and limit a legislative exemption that would control the kinds of cases where waiver can be imposed in a way that would require those who can pay to do so, while allowing for the exemption of persons who cannot reasonably be expected to pay because of disability.

The Crown made no attempt to demonstrate why this alternative is not realistic, or would not be reasonably effective. [ 40 ] In my view, the Crown has therefore not even begun to demonstrate that there are no reasonable alternative ways of redressing unmeritorious waivers of the victim surcharge short of imposing the victim surcharge on everyone, including when doing so is discriminatory against those who are disabled. [ 41 ] I find that

section 737 is not minimally impairing. The Crown has therefore failed to justify the Charter violation I have identified. c.

The Cost-Benefit Analysis [ 42 ] The final component of the three-part proportionality test asks whether “there is proportionality between the deleterious and salutary effects of the law.” This is a somewhat less accessible way of expressing the limitation that, for a proscribed law to be a reasonable limit on a constitutional right, the negative impact of the law cannot be out of proportion to the benefits it provides. [ 43 ] I have already identified the benefits of the universality components of the legislation.

It ensures that no-one receives an unmeritorious waiver of the victim surcharge, thereby increasing the fund for victims and holding more offenders accountable for payment of victim’s services. This enables the societal values related to victim services to better be promoted than if unmeritorious waivers are given. [ 44 ] That benefit has to be kept in context, however.

There is no benefit to either victim’s funds or accountability for the costs of victim’s services, in imposing victim surcharges on those who cannot reasonably be expected to pay - including and most specifically for present purposes, those who cannot pay because of their disability. Casting the net widely enough to catch these people bears no fruit.

The impoverished, mentally ill, are collateral damage caused by a legislative carpet bomb intended to target others. [ 45 ] I have already considered the costs of this blunt legislative measure to be considerable for those who cannot reasonably be expected to pay, or to pay promptly, because they are mentally disabled. I appreciate that these people are not apt to go to jail for not paying, but they are apt to be left under pointless and overlong exposure to the ongoing impact of having an undischarged criminal sanction.

[46] They are expected by law to pay, and can be subject to pecuniary enforcement or collection measures, which can lead individualsto make payments they can ill afford from funds needed for subsistence. Government support, such as GST rebates, can also be clawedback, even though the mentally ill poor are among the ones who are most in need of government support.

And, as I have said, themessage the mentally disabled poor are sent when they have lingering unpayable victim surcharge obligations is that they have not yetbeen held to account for their crimes, because they have not paid a sum they cannot pay. [47] The Crown argues that appreciation of an outstanding victim surcharge obligation should cause no undue psychological harm “asthis is precisely the sentiment that the victim surcharge set out as an objective that is to promote a sense of responsibility.” I mustconfess, I cannot see how expecting individuals who cannot pay, to pay before they can expiate their responsibility, promotes a sense ofresponsibility.

What it promotes, in my view, is a sense of marginalization and helplessness, and it promotes the stereotypical linkbetween criminality and mental illness. [48] Mentally disabled persons who cannot pay can also be denied access to full participation in society until they perform what maybe impossible for them - namely - the payment of the victim surcharge. They can lose their entitlement to licences, permits, or otherinstruments, and they will be ineligible to apply for pardons required for full reintegration. [49] The Crown disparages any suggestion that Criminal Code

section 735.5, which provides specifically for lost entitlement tolicences, permits or other governmental authorizations, is a real cost of the universal imposition of victim surcharge. It says no proof hasbeen presented of anyone ever having lost a licence, permit or other instrument because of outstanding victim surcharge levies.Respectfully, this submission gets the burden wrong. If the Crown, who bears the onus of showing that costs of

section 737 do notoutweigh the benefits of the provision, wants to do so on the footing that 735.5 is a dead letter, the onus is the Crown’s to prove it is adead letter. [50] More importantly, so long as that mechanism for pressuring recovery is available, it would be wrong of me to assume it will haveno adverse costs by relying on governmental discretion not to utilize it.

The law is clear that in measuring Charter compliance oflegislation, concern is with the facial reach of the legislation rather than “reliance on the continuous exemplary conduct of Crown”agents not to use their power in ways that create constitutional mischief, “something that is impossible to monitor or control”: R.v. Bain (SCC), [1992] 1 S.C.R. 91 at 103-04, cited recently in R. v. Nur 2015 SCC 15 , [2015] 1 S.C.R. 773, paras 92-97. [51] Unfortunately, there is no fixed calculus for measuring with precision whether the benefits of a law are not outweighed by thecosts.

What the law tells us with clarity, however, is that the burden is on the Crown to prove that this is so. The Crown has not done soin this case. [52] It is my best judgment that the marginalization and pointless harassment of the impoverished disabled with mandatory surchargelevies is a cost that is too heavy to bear in order to remedy distrust of judicial discretion in the collection of funds for victim services,even bearing in mind that the mentally disabled who are harassed by outstanding victim surcharge obligations have been convicted ofoffences.

They are independently being sentenced for their crimes by sanctions that are tailored to their circumstances. I do not believethat the Charter can accept that the cost of this form of discrimination should be borne by the mentally ill, in order to achieve the benefitof collecting money for victim services that might otherwise be lost through appealable abuses of judicial discretion. IV. Conclusion [53] I therefore find that the Crown has failed to demonstrate, under

section 1, that

section 737 is a reasonable limitation upon Ms.Madeley’s

section 15 rights. I will not, therefore, be imposing the victim surcharge on Ms. Madeley. Released September 28, 2016 ___________________________________ The Honourable Justice David M. Paciocco