R. v. Tinker, 2014 ONCJ 208

Tinker et al. v. Her Majesty the Queen * [Indexed as: R. v. Tinker] Ontario Reports Ontario Court of Justice, Beninger J. April 23, 2014 120 O.R. (3d) 784 | 2014 ONCJ 208 Case

Summary Charter of Rights and Freedoms — Fundamental justice — Mandatory victim fine surcharge in s. 737 of Criminal Code violating s. 7 of Charter and not saved under s. 1 of Charter — Canadian Charter of Rights and Freedoms, ss. 1, 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 737. The applicants challenged the constitutionality of amendments to the victim surcharge provisions in s. 737 of the Criminal Code which remove a sentencing judge's discretion and require the judge to impose a victim surcharge of $100 for each

summary offence and $200 for each indictable offence where no fine is imposed. Held , the application should be allowed. The applicants were impecunious. In the absence of the amendments, it would be appropriate to waive the surcharge in their cases. The mandatory imposition of the surcharge negatively impacted the applicants' security of the person. Without regard to their circumstances, the surcharge had to be paid within 30 or 60 days, failing which the applicants would be subject to a jail sentence.

The removal of the court's ability to waive the surcharge was arbitrary, overreaching and grossly disproportionate to the legislative goal of increasing offenders' accountability to victims of crime. The mandatory imposition of the surcharge violates s. 7 of the Charter . The mandatory imposition of a surcharge cannot be reconciled with a careful and balanced consideration of the principles and purposes of sentencing which is required by ss. 718, 718.1 and 718.2 of the Code. The violation of s. 7 is not justified under s. 1 of the Charter . The requirement for a mandatory surcharge is of no force or effect.

Cases referred to Canada (Attorney General) v. Bedford , [2013] 3 S.C.R. 1101 , [2013] S.C.J. No. 72 , 2013 SCC 72 , 366 D.L.R. (4th) 237 , 452 N.R. 1 , 312 O.A.C. 53 , 2014EXP-30 , J.E. 2014-21 , 303 C.C.C. (3d) 146 , 7 C.R. (7th) 1 , 297 C.R.R. (2d) 334 , 110 W.C.B. (2d) 753 ; R. v. Cloud , [2014] Q.J. No. 513 , 2014 QCCQ 464 , 2014EXP-1120 , J.E. 2014-608 , 300 C.R.R. (2d) 349 , 8 C.R. (7th) 364 (C.C.Q. (Ch. Crim.)); R. v. Ferguson , [2008] 1 S.C.R. 96 , [2008] S.C.J.

No. 6 , 2008 SCC 6 , 228 C.C.C. (3d) 385 , EYB 2008-130228 , [2008] 5 W.W.R. 387 , J.E. 2008-514 , 371 N.R. 231 , 290 D.L.R. (4th) 17 , 425 A.R. 79 , 54 C.R. (6th) 197 , 87 Alta. L.R. (4th) 203 , 168 C.R.R. (2d) 34 , 78 W.C.B. (2d) 303 ; R. v. Flaro , [2014] O.J. No. 94 , 2014 ONCJ 2 , 7 C.R. (7th) 151 , 111 W.C.B. (2d) 441 ; R. v. Nur (2013), 117 O.R. (3d) 401 , [2013] O.J. No. 5120 , 2013 ONCA 677 , 296 C.R.R. (2d) 21 , 303 C.C.C. (3d) 474 , 311 O.A.C. 244 , 5 C.R. (7th) 292 ; R. v. Summers , [2014] S.C.J.

No. 26 , 2014 SCC 26 , 2014EXP-1197 , J.E. 2014-658 , EYB 2014-235729 , 456 N.R. 1 , 316 O.A.C. 349 Statutes referred to Canadian Charter of Rights and Freedoms , ss. 1, 7 , 12 , 15 Constitution Act, 1867 , R.S.C. 1985, App. II, No. 5, s. 52, s. 92(2) [page785] Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52

Controlled Drugs and Substances Act , S.C. 1996, c. 19 [as am.], s. 4(1) Courts of Justice Act , R.S.O. 1990, c. C.43, s. 109 Criminal Code , R.S.C. 1985, c. C-46, ss. 718 [as am.], 718.1 [as am.], 718.2 [as am.], 737 [as am.], (1) [as am.], (2)( b ), (3), (5) [rep. by S.C. 2013, c. 11, s. 3] Authorities referred to Dupuis, Tanya, Legislative

Summary, Bill C-37: Increasing Offenders' Accountability for Victims Act (Ottawa: Library of Parliament, 2013) APPLICATION for a declaration that a mandatory victim surcharge is unconstitutional. B. Kelneck , for Crown. A. Black , for applicants. BENINGER J. : — [ 1 ] The applicants have brought an application under the Canadian Charter of Rights and Freedoms challenging the s. 737 [of the Criminal Code , R.S.C. 1985, c. C-46] victim surcharge amendments, which came into effect on Oct. 24, 2013.

The applicants are (in chronological order) Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead. [ 2 ] I heard the applicant and Crown respondent submissions on April 15, 2014. Notice under the Courts of Justice Act, S. 109 [ 3 ] The first issue I will address is the notice provided to the Crown by the applicants under s. 109 of the Courts of Justice Act , R.S.O. 1990, c. C.43.

On the date of hearing, the Crown took the position that it had only received notice that the applicants were seeking a personal exemption from the provisions of the section, and were not seeking relief which may include striking down part or all of the s. 737 amendments. I do not accept the Crown position. [ 4 ] The Crown was served with notice under s. 109 of the Courts of Justice Act on or about February 20, 2014. The notice states that the applicants "intend to question the constitutional validity of s. 737 of the Criminal Code ".

The legal basis for the argument is stated as being "s. 737 of the Criminal Code is unconstitutional". [ 5 ] Prior to the application being heard, the matter was spoken to in court on February 24, March 17 and March 19. In court, the Crown acknowledged receiving notice of the constitutional application. At no point did the Crown take the position that the applicants were seeking limited relief. [page786] [ 6 ] The Crown bases its argument that the applicants seek only limited relief on the order requested in the applicant's factum.

The relief sought by the applicants includes specific orders for exemptions for the applicants and "such further and other relief as this Honourable Court deems appropriate". [ 7 ] The Crown only raised the argument that limited relief was sought by the applicants upon filing its responding factum on or about April 11, 2014. Despite having numerous opportunities to make the argument on earlier dates, the Crown chose not to do so. I find that the Crown had full and proper notice of the relief being sought by the applicants under s. 109 of the Courts of Justice Act .

Background [ 8 ] The s. 737 amendment issue has already been addressed in the Ontario Court of Justice by Madam Justice Schnall in R. v. Flaro , [2014] O.J. No. 94 , 2014 ONCJ 2 . I adopt the legislative

summary of the s. 737 amendments, as set out by Justice Schnall. [ 9 ] In particular, prior to the amendments, s. 737(5), now repealed, read: 737(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or 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[.] [ 10 ] Under s. 737(5), the court was able to exercise discretion with respect to the imposition of the surcharge provisions in appropriate cases. The amendments removed that discretion.

The Applicants [ 11 ] Mr. Tinker and Ms. Judge filed affidavits on the application setting out their financial circumstances. The cases of Mr. Bondoc and Mr. Mead were heard in the two days prior to the application being argued. [ 12 ] Taking into account the financial circumstances of the applicants, I did not find it to be part of a fit sentence to impose fines as punishment as part of any of their sentences. Prior to the s. 737 amendments, I would have exercised my discretion and waived the surcharge in each of their cases.

My reason for waiving the surcharge would have been that, having heard all of the evidence and the submissions of counsel as to sentence, each of the offenders met the "undue hardship" standard as set out in the repealed s. 737(5). [page787] [ 13 ] Under s. 737(3), the amount of the surcharge may be increased, upon the exercise of a judge's discretion in appropriate cases. By removing judicial discretion, the s. 737 amendments made the imposition of a surcharge mandatory on all sentences. The minimum amount of the surcharge, being $100 for

summary offences and $200 for indictable offences, cannot be waived. [ 14 ] Under s. 737(2)( b ), the surcharge is applicable to every offender, including an offender who has no source of income, and relies on community food banks and shelters for the basic necessities of life. A person in those circumstances is given 30 days to pay a $100 surcharge and 60 days to pay a $200 surcharge. When there are multiple counts, the amount of the surcharge owing is also multiplied. If the surcharge is not paid in the required time, payment may be enforced in the same manner as for a fine. Non-payment of the surcharge may result in a default jail term.

Section 7 Charter [ 15 ] I agree with Justice Schnall's analysis which finds that the surcharge is a form of punishment. [ 16 ] As set out in R. v. Ferguson , [2008] 1 S.C.R. 96 , [2008] S.C.J. No. 6 , 2008 SCC 6 , a judge must impose sentence within the range fixed by Parliament, unless the minimum sentence is unconstitutional. [ 17 ]

Section 7 of the Charter provides that the state cannot deny a person's right to life, liberty or security of the person, except in accordance with the principles of fundamental justice. [ 18 ] As stated by Chief Justice McLachlin, for a unanimous Supreme Court of Canada, in Canada (Attorney General) v. Bedford , [2013] 3 S.C.R. 1101 , [2013] S.C.J.

No. 72 , 2013 SCC 72 , at para. 58 : . . . the question is whether the impugned laws negatively impact or limit the applicants' security of the person, thus bringing them within the ambit of, or engaging, s. 7 of the Charter . [ 19 ] I find that the mandatory imposition of the surcharge does negatively impact the security of the person for the applicants before the court. Without regard to their personal circumstances, the surcharge must be paid within a 30- or 60-day time period.

If the surcharge is not paid as required, the person in default is clearly informed that they are subject to serving a jail sentence. [ 20 ] The Crown argues that a person has the option of obtaining extensions of time to pay the surcharge. I do not find that argument persuasive. Applications for extensions of time to pay [page788] prolong a court proceeding. They require additional resources within the court system.

In my view, an extended enforcement procedure for a $100 surcharge, targeting a person who has no ability to pay, is not a proceeding which enhances the criminal justice system in the eyes of the community. [ 21 ] As s. 7 is engaged, the next determination is whether the deprivation is in accordance with the principles of fundamental justice. [ 22 ] As Chief Justice McLachlin writes in Bedford , supra , at para. 96 : The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values.

The principles of fundamental justice are an attempt to capture those values. Over the years, the jurisprudence has given shape to the content of those basic values. [ 23 ] Continuing in para. 123, Chief Justice McLachlin writes: The question under s. 7 is whether anyone's life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7. [Emphasis in original] [ 24 ] The gross proportionality Charter analysis was recently reviewed by Justice Doherty in R. v.

Nur (2013), 117 O.R. (3d) 401 , [2013] O.J. No. 5120 , 2013 ONCA 677 . At para. 74, Justice Doherty states: The gross disproportionality standard recognizes that Parliament is free to set sentencing policy, even a policy that restricts the individualized approach to sentencing in

Part XXIII, so long as the policy does not impose sentences that are so excessive as to be grossly disproportionate. [Citations omitted] [ 25 ] Justice Doherty sets out a two-step inquiry, in paras. 75 and 76:

First, the court must decide whether the punishment is grossly disproportionate as applied to the accused before the Court[.] If the sentence survives the particularized inquiry, the Court goes on to decide whether the sentence is grossly disproportionate when applied to reasonable hypotheticals[.] [Citations omitted] [ 26 ] To do the gross disproportionality analysis, a number of factors are identified in the case law by Justice Doherty in Nur , supra , at para. 78 : -- the gravity of the offence; -- the personal characteristics of the offender; [page789] -- the particular circumstances of the case; -- the actual effect of the punishment on the individual; -- the penological goals and sentencing principles reflected in the challenged minimum; -- the existence of valid effective alternatives to the mandatory minimum; and -- a comparison of punishments imposed for similar crimes. [ 27 ] The s. 737 amendment which removes judicial discretion is applicable in sentencing under the Criminal Code and Controlled Drugs and Substances Act , S.C. 1996, c. 19 (" CDSA ") for every offender.

It is broad-brush legislation, which defies analysis of the applicable case law factors. The "reasonable hypothetical" offender is everybody, and anybody. It may be a person with mental illness challenges who relies upon community food banks and shelters for the basic necessities of life. [ 28 ] As noted by Justice Healy in R. v. Cloud , [2014] Q.J. No. 513 , 2014 QCCQ 464 (C.C.Q. (Ch.

Crim.)), para. 18: . . . the surcharge imposed by s. 737 would disturb reasonable and informed people because it is disproportionate - having regard to the quantum , the inflexibility of its terms and the inherent arbitrariness in distinguishing between cases where a fine is or is not imposed or cases that proceed by

summary conviction or indictment. It is a blunt instrument that is far too blunt to achieve any valid penal purpose[.] [Emphasis in original] [ 29 ] Chief Justice McLachlin writes in Bedford , supra , at para. 98 , that Arbitrariness was used to describe the situation where there is no connection between the effect and the object of the law. [ 30 ] The object of the s. 737 amendments, as set out in the legislative

summary of Bill C-37, is to "increase offenders' accountability to victims of crime" (Dupuis, Tanya, Legislative

Summary, Bill C-37: Increasing Offenders' Accountability for Victims Act (Ottawa: Library of Parliament, 2013), revised April 11, 2013) ("Legislative

Summary"). [ 31 ] As an example, I have difficulty understanding how the stated legislative objective connects to the effect of the imposition of a surcharge in the case of a hypothetical impecunious offender who is found guilty of the offence of possession of one gram of marijuana under s. 4(1) of the Controlled Drugs and Substances Act , and given an absolute discharge. [ 32 ] The Legislative

Summary further notes that the first manner of achieving the legislative objective is "to eliminate judicial discretion" (Legislative

Summary, supra , pg. 1). [page790] [ 33 ] I find that the removal of the Court's ability to waive the surcharge is arbitrary, overreaching, and grossly disproportionate to the legislative goal which is advocated. [ 34 ] I find the mandatory imposition of the surcharge to be a violation of s. 7 of the Charter . [ 35 ] The s. 737 amendments also increased the amount of the surcharge payable when a fine is imposed as part of the sentence. In most cases, there is judicial discretion as to whether a fine is part of a fit sentence.

In some cases, such as drinking and driving offences, Parliament has set minimum fines to be imposed. In those cases, Parliament has clearly distinguished certain types of conduct as requiring the punishment of a minimum fine. I do not find the imposition of the surcharge for offences with penalties that reflect a considered sentencing policy ( i.e ., the deterrence of drinking and driving) to be grossly disproportionate or arbitrary.

Section 1 Charter [ 36 ] The rights and freedoms as guaranteed by the Charter are subject to the limitation in s. 1 : 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [ 37 ] The Supreme Court of Canada recently addressed legislation on sentencing in R. v. Summers , [2014] S.C.J. No. 26 , 2014 SCC 26 .

For a unanimous court, Justice Karakatsanis wrote, with reference to legislation respecting credit for pre-trial custody [at para. 59]: . . . I recognize that ss. 719(3) and 719(3.1) do not exist in isolation, but form part of the overall sentencing scheme in the Criminal Code . As the legislature is presumed to have created a coherent, consistent and harmonious statutory scheme, s. 719 should be interpreted in a manner that is consistent with the principles and purposes of sentencing set out in

Part XXIII of the Criminal Code . [ 38 ] By way of analogy, the surcharge provisions in s. 737 must also be presumed to be part of a coherent, consistent and harmonious statutory scheme. Sections 718 , 718.1 and 718.2 of the Criminal Code set out the purpose and principles of sentencing. In my view, the mandatory imposition of a surcharge in s. 737(2)(

b) cannot be reconciled with a careful and balanced consideration of the principles and purposes of sentencing which is required by ss. 718 , 718.1 and 718.2 . [page791] [ 39 ] I hold that the requirement in s. 737(2)(

b) for a surcharge, where no fine is imposed on the offender, does infringe s. 7 of the Charter and cannot be saved by s. 1 .

Section 12 and S. 15 of the Charter and S. 92(2) Constitution Act, 1867 [ 40 ] Having decided the application on the basis of s. 7 of the Charter , it is unnecessary to address the applicant's arguments with respect to s. 12 of the Charter , s. 15 of the Charter and s. 92(2) of the Constitution Act, 1867 .

Conclusion [ 41 ] The s. 737 amendment which removes judicial discretion in considering a fit sentence in all cases, without reference to sentencing principles as set out in s. 718, is a broad-brush punishment which casts the widest possible net upon persons being sentenced in the criminal justice system. [ 42 ] The remedy for the Charter violation is under s. 52 of the Constitution Act, 1982 . [ 43 ] I declare that the requirement for a mandatory surcharge in ss. 737(1) and s. 737(2)(

b) is of no force and effect. There will be no surcharge imposed with respect to any of the offences for any of the applicants. Application allowed. * Vous trouverez la traduction française à la p. 791, post. End of Document