Alex Boudreault Appellant v. Her Majesty The Queen and Attorney General of Quebec, 2018 SCC 58

SUPREME COURT OF CANADA Citation: R. v.

Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 Appeal Heard: April 17, 2018 Judgment Rendered: December 14, 2018 Dockets: 37427, 37774, 37782, 37783 Between: Alex Boudreault Appellant and Her Majesty The Queen and Attorney General of Quebec Respondents - and - Attorney General of Alberta, Colour of Poverty – Colour of Change, Income Security Advocacy Centre, British Columbia Civil Liberties Association, Aboriginal Legal Services Inc., Canadian Civil Liberties Association, Pivot Legal Society and Yukon Legal Services Society Interveners And Between: Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead Appellants and Her Majesty The Queen Respondent - and -

Attorney General of Quebec, Aboriginal Legal Services Inc., Colour of Poverty – Colour of Change, Income Security Advocacy Centre, Criminal Lawyers’ Association of Ontario, Yukon Legal Services Society and Canadian Civil Liberties Association Interveners And Between: Garrett Eckstein Appellant and Her Majesty The Queen Respondent - and - Colour of Poverty – Colour of Change, Income Security Advocacy Centre and Canadian Civil Liberties Association Interveners And Between: Daniel Larocque Appellant and Her Majesty The Queen and Attorney General of Ontario Respondents - and - Colour of Poverty – Colour of Change, Income Security Advocacy Centre and Canadian Civil Liberties Association Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 111) Martin J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Brown JJ. concurring) Dissenting Reasons: (paras. 112 to 200) Côté J. (Rowe J. concurring) R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 Alex Boudreault Appellant v.

Her Majesty The Queen and Attorney General of Quebec Respondents and Attorney General of Alberta, Colour of Poverty – Colour of Change, Income Security Advocacy Centre, British Columbia Civil Liberties Association, Aboriginal Legal Services Inc., Canadian Civil Liberties Association, Pivot Legal Society and Yukon Legal Services Society Interveners - and - Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead Appellants v.

Her Majesty The Queen Respondent and Attorney General of Quebec, Aboriginal Legal Services Inc., Colour of Poverty – Colour of Change, Income Security Advocacy Centre, Criminal Lawyers’ Association of Ontario, Yukon Legal Services Society and Canadian Civil Liberties Association Interveners - and - Garrett Eckstein Appellant

v. Her Majesty The Queen Respondent and Colour of Poverty – Colour of Change, Income Security Advocacy Centre and Canadian Civil Liberties Association Interveners - and - Daniel Larocque Appellant v. Her Majesty The Queen and Attorney General of Ontario Respondents and Colour of Poverty – Colour of Change, Income Security Advocacy Centre and Canadian Civil Liberties Association Interveners Indexed as: R. v. Boudreault 2018 SCC 58 File Nos.: 37427, 37774, 37782, 37783. 2018: April 17; 2018: December 14.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for quebec on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Right to liberty — Right to security of person — Remedy — Mandatory victim surcharge — Offenders required to pay monies to state as mandatory victim surcharge — Amount of surcharge set by law and owed for each and every

summary conviction or indictable offence — Offenders challenging constitutionality of surcharge — Whether surcharge constitutes punishment that is cruel and unusual — Whether surcharge infringes right to liberty and security of person in manner that is overbroad — Appropriate remedy — Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 737 .

Under s. 737 of the Criminal Code , everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act is required to pay monies to the state as a mandatory victim surcharge. The amount of the surcharge is 30 percent of any fine imposed, or, where no fine is imposed, $100 for every

summary conviction count and $200 for every indictable count. Although sentencing judges have the discretion to increase the amount of the surcharge where appropriate, they cannot decrease the amount or waive the surcharge for any reason. The imposition of the surcharge cannot be appealed. At sentencing, several offenders challenged the constitutionality of the surcharge on the basis that it constitutes cruel and unusual punishment, contrary to s. 12 of the Charter , violates their right to liberty and security of the person, contrary to s. 7 of the Charter , or both.

The offenders all live in serious poverty and face some combination of addiction, mental illness and disability. While the results were mixed at sentencing, the respective courts of appeal rejected the constitutional challenges. Held (Côté and Rowe JJ. dissenting): The appeals should be allowed.

Section 737 of the Criminal Code infringes s. 12 of the Charter and is not saved by s. 1 . It is invalidated with immediate effect. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ.: The mandatory victim surcharge constitutes punishment, engaging s. 12 of the Charter , and its imposition and enforcement on several of the offenders, as well as the reasonable hypothetical offender, result in cruel and unusual punishment. The surcharge cannot be saved under s. 1 of the Charter . It is not necessary to consider whether s. 7 of the Charter is infringed.

The surcharge constitutes punishment because it flows directly and automatically from conviction and s. 737(1) itself sets out that it applies “in addition to any other punishment imposed on the offender”. The surcharge also functions in substance like a fine, which is an established punishment, and it is intended to further the purpose and principles of sentencing. The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter , because its impact and

effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the circumstances of this case, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. Sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes.

The crucial issue is whether the offenders are able to pay, and in this case, they are not. For the offenders in this case and for the reasonable hypothetical offender, the surcharge leads to a grossly disproportionate sentence. Although it advances the valid penal purposes of raising funds for victim support services and of increasing offenders’ accountability to both individual victims of crime and to the community generally, the surcharge causes four interrelated harms to persons like the offenders.

First, it causes them to suffer deeply disproportionate financial consequences, regardless of their moral culpability. Second, it causes them to live with the threat of incarceration in two separate and compounding ways — detention before committal hearings and imprisonment if found in default. Third, the offenders may find themselves targeted by collections efforts endorsed by their province of residence. Fourth, the surcharge creates a de facto indefinite sentence for some of the offenders, because there is no foreseeable chance that they will ever be able to pay it.

This ritual of repeated committal hearings, which will continue indefinitely, operates less like debt collection and more like public shaming. Indeterminate sentences are reserved for the most dangerous offenders, and imposing them in addition to an otherwise short-term sentence flouts the fundamental principles at the very foundation of our criminal justice system. The surcharge also fundamentally disregards proportionality in sentencing.

It wrongly elevates the objective of promoting responsibility in offenders above all other sentencing principles, it ignores the fundamental principle of proportionality set out in the Criminal Code , it does not allow sentencing judges to consider mitigating factors or the sentences received by other offenders in similar circumstances, it ignores the objective of rehabilitation, and it undermines Parliament’s intention to ameliorate the serious problem of overrepresentation of Indigenous peoples in prison.

The cumulative charge-by-charge basis on which the surcharge is imposed increases the likelihood that it will disproportionately harm offenders who are impoverished, addicted and homeless. It will also put self- represented offenders at an additional disadvantage because they may not know that they may negotiate the terms of their plea in order to minimize the amount of the surcharge. While judicial attempts to lessen the disproportion may be salutary, they cannot insulate the surcharge from constitutional review.

Indeed, reducing some other part of the sentence may minimize disproportion, but it cannot eliminate the specific and extensive harms caused by the surcharge. Moreover, imposing a nominal fine for the sole purpose of lowering the amount of the surcharge would ignore the legislature’s intent that the surcharge, in its full amount, would apply in all cases as a mandatory punishment. It is unnecessary to engage in a s. 1 Charter analysis, because the state did not put forward any argument or evidence to justify the surcharge if found to breach Charter rights.

It follows that the mandatory victim surcharge imposed by s. 737 of the Criminal Code is unconstitutional.

Section 737 of the Criminal Code should be declared to be of no force and effect immediately. The state has not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law. Reading back in the judicial discretion to waive the surcharge that was abrogated in 2013 is also the wrong approach, because it is a highly intrusive remedy, and because Parliament ought to be free to consider how best to revise the imposition and enforcement of the surcharge.

Because robust submissions on the issue were not made, it would be inappropriate to grant a remedy to offenders not involved in this case and those no longer in the system who cannot now challenge their sentences. However, a variety of possible remedies exist. The offenders may be able to seek relief in the courts, notably by recourse to s. 24(1) of the Charter . The government could also proceed administratively, while Parliament may act to bring a modified and Charter -compliant version of the surcharge back into the Criminal Code . Per Côté and Rowe JJ. (dissenting): The surcharge is constitutionally valid.

It does not constitute cruel and unusual punishment, nor does it deprive impecunious offenders of their security of the person. Moreover, any deprivation of liberty that may result from its application accords with the principles of fundamental justice.

While the surcharge constitutes punishment within the meaning of s. 12 of the Charter , and while a fit and proportionate sentence for the offenders in this case or the hypothetical impecunious offender would not include the surcharge, the negative effects associated with the surcharge are not abhorrent, intolerable or so excessive as to outrage the standards of decency. As a result, they do not rise to the level of gross disproportionality, and therefore the surcharge cannot be characterized as cruel and unusual.

Indeed, a number of the components to the surcharge regime attenuate the particularly severe impact of the surcharge on impecunious offenders. First, offenders who are unable to pay within the prescribed time will not be subject to enforcement mechanisms if they either participate in a fine option program or seek the extension of time to pay to which they are entitled. There are no restrictions on the number of extensions an offender can seek over a given period, and there is no limit on the length of an extension.

Extensions may also be granted either before or after the offender defaults, and obtaining an extension is not onerous or procedurally difficult given that applications can be brought by the offender or by someone else on his or her behalf and may be adjudicated either by the court or by a person designated by the court. To the extent that a province establishes procedures that are complex to the point of being inaccessible, this cannot be attributed to the impugned provision but rather to the manner in which the province implements it.

Second, offenders will not be imprisoned if they default due to poverty; only offenders who have the means to pay, but who choose not to, risk being imprisoned following a committal hearing. While it may be difficult for judges to draw the line between an inability to pay and a refusal to do so, the fact that judges may misapply the law cannot render the surcharge unconstitutional, particularly since the provision providing for committal in default of payment does not establish an overly broad standard that cannot be properly applied by trial judges.

Third, while compelled attendance at a committal hearing will necessarily deprive a defaulting offender of his or her liberty to some degree, the deprivation will only occur where it is necessary in the public interest. Such cases will also be very rare, especially given that non-payment is not a criminal offence. Moreover, there is no evidence that impecunious offenders are in fact routinely being detained unnecessarily pending their committal hearings.

Fourth, an unpaid surcharge cannot be entered as a civil judgment, and therefore, an offender who defaults will not face thesame financial consequences as one who defaults in paying a fine or an ordinary debt. Any provincial collection efforts employed againstdefaulting offenders are neither required nor authorized by the Criminal Code and are therefore not an effect of the impugned surcharge. Fifth, there is insufficient evidence to conclude that the stress caused by the surcharge to impecunious offenders is severeenough to make the punishment imposed cruel and unusual.

And finally, although the surcharge may not be conducive to attempts bysome offenders to achieve rehabilitation and reintegration into society, this alone is not sufficient to meet the high bar for establishing as. 12 Charter violation. In any event, an offender who is ineligible for a traditional record suspension as a result of his or her inability topay the surcharge is not left without recourse. While not perfect alternatives, conditional pardons and remission orders may be granted bythe Governor in Council.

While it is likely that some will face great difficulty in paying the surcharge, courts should not simply acceptthat the circumstances of the offender at the date of sentencing will necessarily continue into the future. Not only are findings to thecontrary pessimistic in nature; they also undermine the very basis on which the principle of rehabilitation is premised. With respect to s. 7 of the Charter, the surcharge does not engage the offenders’ security interest due to the stress associatedwith the mandatory imposition of the surcharge.

Neither common sense nor the evidence provides a basis for the conclusion that theactual stress impecunious offenders may experience as a result of the surcharge is serious enough that it has a profound effect on theirpsychological integrity. The offenders’ liberty interest is nevertheless engaged insofar as non-payment of the surcharge triggers the possibility ofbeing compelled to attend a committal hearing which will necessarily entail some deprivation of personal liberty.

However, thisdeprivation of liberty is not overbroad in relation to impecunious offenders — it is rationally connected to the purpose underlying thecommittal hearing: to determine whether an offender has the funds to pay the surcharge and to give him or her an opportunity to explainthe non-payment. Cases Cited By Martin J. Applied: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; distinguished: R.v. Pham (2002), (ON CA), 167 C.C.C. (3d) 570; referred to: R. v. Michael, 2014 ONCJ 360, 121 O.R. (3d) 244; R.v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530; R. v.

Wigglesworth, (SCC), [1987] 2 S.C.R. 541; R. v. Rodgers, 2006 SCC15, [2006] 1 S.C.R. 554; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Lloyd, 2016 SCC 13, [2016] 1S.C.R. 130; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Steele v. MountainInstitution, (SCC), [1990] 2 S.C.R. 1385; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Oakes, (SCC), [1986] 1S.C.R. 103; R. v. Cloud, 2014 QCCQ 464, 8 C.R. (7th) 364; R. v.

Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Barinecutt, 2015BCPC 189, 337 C.R.R. (2d) 1; R. v. Bateman, 2015 BCSC 207; R. v. Flaro, 2014 ONCJ 2, 7 C.R. (7th) 151; R. v. Shaqu, [2014] O.J.No. 2426; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee,2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399; R. v. Cloud, 2016 QCCA 567, 28 C.R. (7th) 310;Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; Reference re Manitoba Language Rights, (SCC),[1985] 1 S.C.R. 721; Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Thomas, (SCC), [1990] 1 S.C.R. 713; R. v. Sarson, (SCC), [1996] 2 S.C.R. 223; R. v. Gamble, (SCC), [1988] 2S.C.R. 595. By Côté J. (dissenting) R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680; R. v. Nur, 2015 SCC 15, [2015] 1S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v.

Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; Steele v. MountainInstitution, (SCC), [1990] 2 S.C.R. 1385; R. v. Lambe, 2000 NFCA 23, 73 C.R.R. (2d) 273; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485; R. v. Cloud, 2016 QCCA 567, 28 C.R. (7th) 310; R. v. Mikhail, 2015 ONCJ 469; R. v. Bao, 2018 ONCJ 136;R. v. Willett, 2017 ABPC 68; R. v. Michael, 2014 ONCJ 360, 121 O.R. (3d) 244; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392; R. v.Ridley, 2017 ONSC 4672; Chaussé v. R., 2016 QCCA 568; R. v. Flaro, 2014 ONCJ 2, 7 C.R. (7th) 151; R. v. Antic, 2017 SCC 27, [2017]1 S.C.R. 509; Kahkewistahaw First Nation v.

Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Canada (Attorney General) v.Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Chaoulli v.Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791. Statutes and Regulations Cited Bill C-75,

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments toother Acts, 1st Sess., 42nd Parl., 2018. Canadian Charter of Rights and Freedoms, ss. 1, 7, 11, 12, 15, 24(1). Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 2(3). Constitution Act, 1982, s. 52(1). Controlled Drugs and Substances Act, S.C. 1996, c. 19. Criminal Code, R.S.C. 1985, c. C-46, Parts XVI, XVIII, ss. 253, 255(1)(a)(i), 495, 497, 498, 499, 503, 507, 512(2), 515, 537, 544,

687(1), 716, 718, 718.1, 718.2(e), 727.9(1), (2) [ad. c. 23 (4th Supp.), s. 6], 730, 732.1(3)(c), 734, 734 to 734.8, 734.3, 734.5, 734.6, 734.7, 734.8, 736, 737, 748, 748.1, 822(1). Criminal Records Act , R.S.C. 1985, c. C-47, ss. 3(1), 4 . Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), ss. 238 , 239 , 243 . Increasing Offenders’ Accountability for Victims Act , S.C. 2013, c. 11. O.C. 2173/99. Time limit to pay the victim surcharge , O.C. 154-2016, 2016 G.O. II. Authors Cited Canada.

Got a question about your application? , last updated November 15, 2018 (online: https://www.canada.ca/en/parole- board/services/record-suspensions/got-a-question-about-your-application.html; archived version: https://www.scc-csc.ca/cso- dce/2018SCC-CSC58_1_eng.pdf ). Law, Moira A. The Federal Victim Surcharge: The 2013 Amendments and their Implementation in Nine Jurisdiction . Ottawa, Department of Justice, 2016 (online http://publications.gc.ca/collections/collection_2018/jus/J4-48-2016-eng.pdf; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC58_2_eng.pdf ). Parole Board of Canada.

Royal Prerogative of Mercy Ministerial Guidelines , October 2014 (online: https://www.canada.ca/content/dam/pbc-clcc/documents/publications/Royal-Prerogative-Of-Mercy-Ministerial-Guidelines.pdf, archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC58_3_eng_fra.pdf ). Salhany, Roger E. Canadian Criminal Procedure , 6th ed. Aurora, Ont.: Thomson Reuters, 1968 (loose-leaf updated July 2018, release 60). Statistics Canada.

Household income in Canada: Key results from the 2016 Census , September 13, 2017 (online: https://www150.statcan.gc.ca/n1/daily-quotidien/170913/dq170913a-eng.htm; archived version: https://www.scc-csc.ca/cso- dce/2018SCC-CSC58_4_eng.pdf ). APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Schrager and Mainville JJ.A.), 2016 QCCA 1907 , 343 C.C.C. (3d) 131, 368 C.R.R. (2d) 80, [2016] AZ-51345328, [2016] Q.J. No. 16795 (QL), 2016 CarswellQue 11705 (WL Can.), affirming a decision of Boyer J., 2015 QCCQ 8504 , [2015] AZ-51216654, [2015] Q.J. No. 9130 (QL), 2015 CarswellQue 13978 (WL Can.).

Appeal allowed, Côté and Rowe JJ. dissenting. APPEAL from a judgment of the Ontario Court of Appeal (Rouleau, van Rensburg and Pardu JJ.A.), 2017 ONCA 552 , 136 O.R. (3d) 718, 39 C.R. (7th) 53, 385 C.R.R. (2d) 83, 351 C.C.C. (3d) 310, [2017] O.J. No. 3435 (QL), 2017 CarswellOnt 10029 (WL Can.), affirming a decision of Glass J., 2015 ONSC 2284 , 20 C.R. (7th) 174, 331 C.R.R. (2d) 206, [2015] O.J. No. 1758 (QL), 2015 CarswellOnt 4936 (WL Can.), setting aside the decision of Beninger J., 2014 ONCJ 208 , 120 O.R. (3d) 784, 11 C.R. (7th) 43, 309 C.R.R. (2d) 291, [2014] O.J. No. 2056 (QL).

Appeal allowed, Côté and Rowe JJ. dissenting. APPEAL from a judgment of the Ontario Court of Appeal (Rouleau, van Rensburg and Pardu JJ.A.), 2017 ONCA 552 , 136 O.R. (3d) 718, 39 C.R. (7th) 53, 385 C.R.R. (2d) 83, 351 C.C.C. (3d) 310, [2017] O.J. No. 3435 (QL), 2017 CarswellOnt 10029 (WL Can.), affirming a decision of Paciocco J., 2015 ONCJ 222, [2015] O.J. No. 1869 (QL), 2015 CarswellOnt 5865 (WL Can.) . Appeal allowed, Côté and Rowe JJ. dissenting.

APPEAL from a judgment of the Ontario Court of Appeal (Rouleau, van Rensburg and Pardu JJ.A.), 2017 ONCA 552 , 136 O.R. (3d) 718, 39 C.R. (7th) 53, 385 C.R.R. (2d) 83, 351 C.C.C. (3d) 310, [2017] O.J. No. 3435 (QL), 2017 CarswellOnt 10029 (WL Can.), affirming a decision of Lacelle J., 2015 ONSC 5407 , [2015] O.J. No. 7135 (QL), 2015 CarswellOnt 20673 (WL Can.), setting aside a decision of Legault J., 2014 ONCJ 428 , [2014] O.J. n o 4113 (QL), 2014 CarswellOnt 12087 (WL Can.). Appeal allowed, Côté and Rowe JJ. dissenting. Yves Gratton , for the appellant Alex Boudreault (37427). Daniel C.

Santoro , Delmar Doucette and Megan Howatt , for the appellants Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead (37774). James Foord and Brandon Crawford , for the appellant Garrett Eckstein (37782). Yves Jubinville and Maryse Renaud , for the appellant Daniel Larocque (37783) . Louis-Charles Bal , for the respondent Her Majesty The Queen ( 37427) . Julien Bernard , Julie Dassylva and Sylvain Leboeuf , for the respondent the Attorney General of Quebec ( 37427) . Michael Perlin and Philippe Cowle , for the respondents Her Majesty The Queen (37774 and 37782 ) and the Attorney General of Ontario (37783).

François Lacasse and Luc Boucher , for the respondent Her Majesty The Queen ( 37783) . Robert A. Fata , for the intervener the Attorney General of Alberta ( 37427 ).

Jackie Esmonde , Daniel Rohde and Marie Chen , for the interveners Colour of Poverty – Colour of Change and the Income Security Advocacy Centre (37427, 37774, 37782 and 37783) . Greg J. Allen and Nicole C. Gilewicz , for the intervener the British Columbia Civil Liberties Association (37427). Jonathan Rudin and Caitlyn E. Kasper , for the intervener the Aboriginal Legal Services Inc. ( 37427 and 37774). Christopher D. Bredt , Pierre N. Gemson and Alannah M. Fotheringham , for the intervener the Canadian Civil Liberties Association (37427, 37774, 37782 and 37783 ). Graham Kosakoski and D. J.

Larkin , for the intervener the Pivot Legal Society (37427). Stobo Sniderman , for the intervener the Yukon Legal Services Society ( 37427 and 37774). Sylvain Leboeuf , Julien Bernard and Julie Dassylva , for the intervener the Attorney General of Quebec (37774). Vanora Simpson and Breana Vandebeek , for the intervener the Criminal Lawyers’ Association of Ontario (37774). The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. was delivered by Martin J. — I. Introduction [ 1 ] Under the Criminal Code , R.S.C. 1985, c.

C-46 (“ Code ”), anyone who is discharged, pleads guilty to, or is found guilty of an offence under the Code or the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”), is required to pay monies to the state as a “mandatory victim surcharge”. The amount is set by law and is owed for each and every

summary conviction or indictable offence. The surcharge is intended to fund government programs designed to assist victims of crime. The surcharge applies regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim. [ 2 ] Judges must impose a surcharge in every case — they have no discretion to waive this surcharge and cannot decrease it. Its imposition can only be appealed when the amounts imposed exceed the minimum mandated amount.

Once the surcharge is levied, an individual remains indebted to the state until the amount is paid in full, although a court may, on application, give the offender more time to pay. [ 3 ] Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized. When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence.

As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies.

In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization. [ 4 ] These appeals are concerned with whether the mandatory victim surcharge is consistent with ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (“ Charter ”) and, if not, whether that inconsistency can be justified under s. 1 of the Charter .

I conclude that the mandatory surcharge amounts to, and operates as, a constitutionally impermissible form of cruel and unusual punishment. Consequently, s. 737 of the Code violates s. 12 of the Charter and cannot be saved under s. 1 . Given this conclusion, it is unnecessary to address s. 7 . [ 5 ] I would allow the appeals and declare s. 737 invalid, with immediate effect. [ 6 ] The reasons that follow are divided into five main parts. The first provides a legislative background to the mandatory victim surcharge. The second provides the factual matrices and judicial histories for the cases under appeal.

The third

section articulates the issues at hand. The fourth

section is the analytical one and includes the analysis for ss. 12 and 1 of the Charter as well as the analysis of the appropriate remedy in this case. The fifth

section provides a conclusion for the reasons. II. Legislative Background [ 7 ] The victim surcharge, formerly known as the victim fine surcharge, was first introduced into the Code in 1988. Former s. 727.9(1) of the Code stated that the court, at sentencing, “shall, in addition to any other punishment imposed on the offender, order the offender to pay a victim fine surcharge”: R.S.C. 1985, c. 23 (4th Supp.), s. 6. At the time, the amount payable was 15 percent of any fine imposed or such lesser amount as may be prescribed by regulation. The base amounts have changed through the years.

Since October 2013, the amount of the surcharge is 30 percent of any fine imposed, or, where no fine is imposed, $100 for every

summary conviction count and $200 for every indictable count: ss. 737(1) and 737(2) of the Code . [ 8 ] The surcharge is levied “for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time”: s. 737(7) of the Code . [ 9 ] In 1988, offenders could avoid the imposition of the surcharge by satisfying the court that “undue hardship to the offender or the dependants of the offender would result”: (4th Supp.), s. 6, introducing s. 727.9(2).

This undue hardship exception was maintained until October 2013, when amendments to the Code eliminated this judicial discretion: Increasing Offenders’ Accountability for Victims Act , S.C. 2013, c. 11 (“2013 Amendments”). Under the current provisions, the sentencing judge retains discretion to increase the amount of the surcharge where appropriate, but not to decrease the amount or to waive the surcharge for any reason: s. 737(3) of the Code . [ 10 ] Subsection 737(9) incorporates most of the enforcement mechanisms for other types of fines set out under ss. 734 to

734.8. These include the imposition of a deemed period of imprisonment to be calculated in accordance with a specified formula: ss. 734(4) and 734(5). They also include suspending the debtor’s licenses and permits and committing the offender for non-payment without reasonable excuse: ss. 734.5 and 734.7.

Section 737(9) also adopts s. 736, which allows provinces to establish fine option programs to allow some offenders to do compensatory work in lieu of paying their fines. [ 11 ] The imposition of the surcharge cannot be appealed, unless the sentencing judge ordered the payment of more than the statutory minimum: ss. 687(1) and 822(1) of the Code . III. Facts and Judicial History [ 12 ] In these appeals, seven individuals appeal the rulings from four different applications to challenge the constitutionality of s. 737 of the Code . [ 13 ] Alex Boudreault’s application was heard in Quebec.

He challenged the provision under s. 12 of the Charter . The other six appellants brought their applications in Ontario. Edward Tinker, Kelly Judge, Michael Bondoc and Wesley James Mead, heard together, challenged the provision under ss. 7 and 12 . Garrett Eckstein and Daniel Larocque, in separate applications, challenged the provision under s. 12 .

While they had mixed results before their sentencing judges, the respective Courts of Appeal rejected the appellants’ constitutional challenges. [ 14 ] In what follows, I will set out the facts and decisions below for each of these four cases before turning to the legal analysis that applies to all of them. A. Quebec

(1) Court of Quebec (

a) Alex Boudreault, 2015 QCCQ 8504 [ 15 ] Alex Boudreault was 21 years old at the date of sentencing. He had no high school education, having quit school at age 15. He had never held a steady job and he had had no income for almost two years. The most serious crimes for which he was sentenced were committed at a time when he was homeless, unemployed, and addicted to marijuana. [ 16 ] Mr. Boudreault pleaded guilty on September 23, 2013 to four

summary charges of breach of probation. Four months later, he also pleaded guilty to seven counts of breaking and entering, one count of attempted breaking and entering, one count of sale of stolen goods, one count of assault with a weapon, and one count of possession of a prohibited weapon. He argued that the mandatory victim surcharge constituted a s. 12 violation either in his own case or in the case of a reasonable hypothetical offender. The sentencing judge determined that he could exercise his discretion with regard to infractions that occurred before the 2013 Amendments.

As such, he reduced the surcharge from $4,000 to $1,400. Being of the opinion that the $1,400 did not constitute cruel and unusual punishment, he dismissed Mr. Boudreault’s arguments and imposed the surcharge.

(2) Quebec Court of Appeal, 2016 QCCA 1907 , 343 C.C.C. (3d) 131 [ 17 ] Mainville and Schrager JJ.A. dismissed the appeal, but for separate reasons. Mainville J.A. opined that the various provisions that give impecunious offenders time to pay and that limit the state’s collection options leave the surcharge in compliance with s. 12 : para. 135.

Schrager J.A., concurring, found that the jurisprudence of this Court led to the conclusion that s. 12 ’s high bar could not apply to a non-carceral sentence. [ 18 ] Chief Justice Duval Hesler would have allowed the appeal and struck down s. 737 for non-compliance with s. 12 of the Charter : paras. 29-30. Since the now-obligatory surcharge applies to every infraction under the Code , the Chief Justice reasoned, a careful examination of possible hypothetical scenarios was required in order to assess the law’s effects: paras. 5-6.

For the Chief Justice, the most compelling hypothetical scenario was based on the appellant’s own circumstances. Had he committed all of his crimes after the 2013 Amendments to s. 737 , he would have owed a surcharge of $4,000. Had the Crown chosen to proceed by way of indictment for all of his offences, the surcharge would have risen to $4,600. In her view, imposing an additional punishment of $4,600 on a person whose total annual income is $4,800 is incompatible with human dignity: para. 109. She concluded that . . . such a surcharge would be clearly and grossly disproportionate.

In the best of cases, such a surcharge would translate into monthly payments made over the course of six years, five and half weeks of full-time work, or 50 days of imprisonment — in addition to the 36 months of imprisonment already imposed. [Emphasis deleted; para. 124.] [ 19 ] The Chief Justice did not agree with Mainville J.A. that the provision is saved by the fact that truly impecunious offenders can escape prison time in the event of default.

She held, rather, that such a system can effectively extend the sentence of an impecunious person indefinitely, as that person is repeatedly detained and brought before a judge to offer up excuses for why they cannot pay. This routine of committal hearings will quickly become grossly disproportionate: Que. C.A. reasons at paras. 105-6. [ 20 ] Having determined that s. 737 , without the judicial discretion that used to exist in the repealed s. 737(5), violated the appellant’s s. 12 right, the Chief Justice turned to s. 1 of the Charter .

She found that s. 1 could not save the surcharge, since where it will never be paid, there is no rational connection between the imposition of the surcharge and the objectives that it seeks to achieve, namely to encourage the accountability of offenders and finance victim support services: para. 130. Further, the Chief Justice found that a sentence that violates s. 12 of the Charter because it is grossly disproportionate cannot pass the minimal impairment and proportionality analysis under s. 1 : para 131. B. Ontario

(1) Ontario Court of Justice and Superior Court of Justice Proceedings

(

a) Edward Tinker, Kelly Judge, Michael Bondoc and Wesley James Mead , 2014 ONCJ 208 , 120 O.R. (3d) 784; 2015 ONSC 2284 , 20 C.R. (7th) 174 [ 21 ] Edward Tinker was 55 years old at the time of sentencing. His income, totalling $1,200 per month, came from Canada Pension Plan and Workers’ Compensation benefits. He had no savings. After his rent and costs of medication, Mr. Tinker was left with $170 per month to pay for food, clothing, utilities, and incidentals. He pleaded guilty to one count of uttering threats and one count of breach of probation.

He was sentenced to 26 days, to be served intermittently, followed by 2 years’ probation. He faced a $200 victim surcharge. [ 22 ] Kelly Judge was 51 years old at sentencing. She was legally blind and a recovering alcoholic who also suffered from depression and bipolar disorder. Her monthly income was $831 from Canada Pension Plan Disability Benefits. Her rent of $800 per month left her with $31 per month for other expenses. Ms. Judge pleaded guilty to assault and one count of uttering threats.

She was sentenced to a suspended sentence and 18 months’ probation, plus a victim surcharge of $200. [ 23 ] Michael Bondoc was, at the date of sentencing, 24 years old and unemployed. He pleaded guilty to two counts of breach of probation for which he was sentenced to 33 days in custody in addition to the 27 he had already spent in detention. He faced a $200 victim surcharge. [ 24 ] Wesley James Mead was 46 years old at the date of sentencing. He struggled with mental illness and supported his spouse and child through Ontario Disability Support Program benefits. Mr.

Mead pleaded guilty to one count of possession of a weapon for a purpose dangerous to the public, one count of assault, and one count of assault resisting arrest. He was sentenced to a suspended sentence and probation for a period of 18 months, plus a $300 surcharge. [ 25 ] All four of these appellants challenged s. 737 of the Code on the basis of ss. 7 , 12 , and 15 of the Charter . Only their ss. 7 and 12 claims were argued before this Court.

Beninger J. for the Ontario Court of Justice found that the mandatory victim surcharge infringed s. 7 by arbitrarily and disproportionately violating the offenders’ security of the person. This violation was not saved by s. 1 . That holding was overturned on appeal to the Superior Court, per Glass J., who determined that neither s. 7 nor s. 12 were violated by the surcharge. (

b) Garrett Eckstein, 2015 ONCJ 222, [2015] O.J. No. 1869 (QL) [ 26 ] Garrett Eckstein was 19 years old and unemployed at the time of sentencing. He pleaded guilty to the offences of robbery, conspiracy to commit robbery, and breach of probation. The Crown proceeded by indictment on all charges. Consequently, in addition to a sentence of 8 months’ incarceration and 18 months’ probation, the sentencing judge was obliged to impose a $600 mandatory surcharge. [ 27 ] Mr.

Eckstein argued that, if not in his own case, the victim surcharge violates the s. 12 right of a reasonable hypothetical offender like the one in R. v. Michael , 2014 ONCJ 360 , 121 O.R. (3d) 244. Michael , which declared the surcharge to be inapplicable because it constituted cruel and unusual punishment, had been decided a few months previously by Eckstein’s sentencing judge, Paciocco J. Between that case and the sentencing of Mr. Eckstein, the Ontario Superior Court rendered its decision in Tinker . As set out above, that decision found no violation of s. 7 .

Paciocco J. made clear that if Tinker were only persuasive authority, he would not have followed it. However, as it was binding on him, he rejected the constitutional challenge and imposed the victim surcharge. (

c) Daniel Larocque, 2014 ONCJ 428 ; 2015 ONSC 5407 [ 28 ] Daniel Larocque was 22 years old at the time of sentencing. He lived in extreme poverty, suffered from addiction, and had serious mental health issues. He was placed with a children’s aid society as a child and had abused alcohol and drugs since he was a teenager. He had never had a full-time job.

He paid for his food and housing with disability benefits, leaving him with $136 per month for all other expenses. [ 29 ] He pleaded guilty to seven counts: two counts of mischief, three counts of assault, one count of uttering threats, and one count of possession. He was, therefore, subject to a victim surcharge of $700, which he argued constituted a violation of s. 12 of the Charter .

Legault J. determined that the s. 12 violation was made out and could not be justified under s. 1 . [ 30 ] On appeal to the Ontario Superior Court, Lacelle J. allowed the appeal, holding that the sentencing judge had erred in finding a s. 12 breach. Lacelle J. also reasoned that the sentencing judge had erred in law by speculating on Mr. Larocque’s future circumstances, contrary to this Court’s holding in R. v. Wu , 2003 SCC 73 , [2003] 3 S.C.R. 530.

(2) Ontario Court of Appeal, 2017 ONCA 552 , 136 O.R. (3d) 718 [ 31 ] This is the decision for all three appeals from Ontario.

The court concluded that the victim surcharge regime is constitutional and does not violate s. 7 or s. 12 of the Charter . [ 32 ] Pardu J.A. began by outlining the legislative safeguards that, in her view, limit the effects of the surcharge: (1) offenders can apply for extensions of time to pay; (2) provided an offender has such an extension he or she will not be found in default; and (3) according to s. 734.7 of the Code , even in the event of default, an offender who lacks the means to pay cannot be sentenced to jail at a committal hearing. [ 33 ] The court then turned to s. 7.

It held that although the liberty interest is engaged because offenders may be compelled to appear at a committal hearing, the deprivation of liberty is in accordance with the principles of fundamental justice. Pardu J.A. held that the law is not overbroad because there is a rational connection between compelling even impecunious offenders to appear at a committal hearing and the purpose of holding offenders accountable to victims of crime. She also held it is not grossly disproportionate because the regime’s laudable goals outweigh the comparatively minimal effect on the liberty interest.

[34] Pardu J.A. went on to reject the s. 12 claim. She acknowledged that imposing a fine on the offenders would bedisproportionate. Relying on R. v. Pham (2002), (ON CA), 167 C.C.C. (3d) 570 (Ont. C.A.), however, she held thatany negative effects are attenuated by the legislative safeguards set out above. If disproportionate, the law is not grosslydisproportionate. IV. Issues [35] These appeals raise the following issues: 1. Does the mandatory victim surcharge set out in s. 737 of the Code violate s. 12 of the Charter? 2.

Does the mandatory victim surcharge set out in s. 737 of the Code violate s. 7 of the Charter? 3. If either s. 12 or s. 7 is violated, is the surcharge saved under s. 1 of the Charter? 4. If it cannot be saved, what is the appropriate remedy? V. Analysis [36] For the reasons that follow, the mandatory victim surcharge constitutes punishment, engaging s. 12 of the Charter. Iconclude that the imposition and enforcement of the surcharge on the poorest individuals among us result in cruel and unusualpunishment. Consequently, s. 737 of the Code violates s. 12 and cannot be saved under s. 1.

Given this holding, I do not need to considerwhether s. 7 is infringed. A. Section 12

(1) Section 12 Is Engaged — The Victim Surcharge Is Punishment [37] The respondents do not dispute that s. 12 is engaged. They acknowledge that if the victim surcharge is notpunishment, it is at least a form of “treatment”. Nonetheless, in my view, it is worth clarifying that the victim surcharge constitutespunishment. [38] The meaning of punishment has been explored in some detail in this Court’s jurisprudence on ss. 11(

h) and 11(

i) ofthe Charter: see e.g. R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554;Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906. Theappellants and certain interveners argue forcefully that the test from this jurisprudence should also apply in the s. 12 context.

I agree thatpunishment should be defined consistently across ss. 11 and 12 of the Charter. [39] The most recent articulation of the test for punishment requires the claimant to show that the state action “(1) . . . is aconsequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence,and either (2) . . . is imposed in furtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on anoffender’s liberty or security interests”: K.R.J., at para. 41. [40] This test is clearly met in this case.

The surcharge flows directly and automatically from conviction. A consequencethat Parliament itself describes as punishment will form part of the arsenal of sanctions. Here, s. 737(1) itself sets out that the victimsurcharge must apply “in addition to any other punishment imposed on the offender”.

A plain reading of the words “in addition to”,“other” and “punishment” indicates that Parliament intended to create a further punishment that would apply in addition to any otherpunishment. [41] Not only does s. 737(9) generally equate the terms “fine” and “surcharge,” the victim surcharge functions insubstance like a fine — a paradigmatic form of punitive sanction: Wigglesworth, at p. 561. It is difficult to understand how a fine couldbe an established punishment, but a 30 percent mandatory addition to any “fine” could be something else.

Section 716 of the Codedefines a fine as “a pecuniary penalty or other sum of money” that “does not include restitution”. The victim surcharge is clearly apecuniary penalty that is not restitution even though the programs funded by the surcharge may indirectly benefit victims. The surchargedoes not require the offender to pay a specific victim in proportion to damage caused. Rather, every offender must pay a set amount tothe state.

Its purpose is also to sanction offenders by depriving them of their funds. [42] Regarding the other two branches of the test, by the respondents’ own admission, the victim surcharge is intended tofurther the purpose and principles of sentencing.

The Ontario Crown submits that one objective of the victim surcharge is “increasingoffenders’ accountability to victims and promoting a sense of responsibility in offenders”: R.F., Attorney General of Ontario, at para. 41.Irrespective of whether the surcharge can actually accomplish this goal in respect of impecunious offenders, the goal falls squarelywithin the purpose of sentencing set out in s. 718(

f) of the Code: “to promote a sense of responsibility in offenders, and acknowledgmentof the harm done to victims or to the community”. [43] The above is enough to meet this Court’s test for punishment. Nonetheless, as set out in more detail below, thevictim surcharge also has a significant impact on the liberty, security, equality, and dignity of those subject to its application. [44] In short, applying the test from K.R.J. to the text, objectives, and effects of the victim surcharge regime leads to theinexorable conclusion that it constitutes punishment.

(2) Section 12 Is Infringed — The Victim Surcharge Is Cruel and Unusual [45] Since the victim surcharge constitutes a form of punishment, the next step is to determine whether that punishmentis cruel and unusual. As this Court has stated many times, demonstrating a breach of s. 12 of the Charter is “a high bar”: R. v. Lloyd,

2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24. The impugned punishment must be more than merely disproportionate or excessive.Rather, “[i]t must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society”: Lloyd, at para. 24, citingR. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26; see also R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

It isonly on “rare and unique occasions” that a sentence will infringe s. 12, as the test is “very properly stringent and demanding”: Steele v.Mountain Institution, (SCC), [1990] 2 S.C.R. 1385, at p. 1417. [46] Where a mandatory minimum sentence is challenged, this Court has set out a two-step inquiry for determiningwhether that sentence is grossly disproportionate. First, a court must determine what would constitute a proportionate sentence for theoffence according to the principles of sentencing in the Code.

Second, a court must ask whether the mandatory punishment is grosslydisproportionate when compared to the fit sentence for either the claimant or for a reasonable hypothetical offender: see R. v. Nur, 2015SCC 15, [2015] 1 S.C.R. 773, at paras. 46 and 77. [47] The present appeals do not involve a typical mandatory minimum sentence for a specific offence. Rather, theyconcern the imposition of a universal punishment that is added without exception to all offences, and for each and every offence, to theother punishment imposed at sentencing.

Despite these differences, Nur requires us to address, in these appeals, the following ultimatequestion: does the victim surcharge render the sentences of either the appellants or a reasonable hypothetical offender grosslydisproportionate based on its overall impact and effects? [48] In answering that question in previous decisions, this Court has taken into consideration, among other things,whether the punishment is necessary to achieve a valid penal purpose, the effects of the punishment on the actual or a hypotheticaloffender, whether the punishment is founded on recognized sentencing principles, and whether there are valid alternatives to thepunishment: R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1072; R. v. Goltz, (SCC), [1991] 3 S.C.R.485, at p. 500; Ont. C.A. reasons, at para. 130. These possible considerations help us address the ultimate question, but are not requiredparts of a rigid test. Nor is any one determinative of the outcome: R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 75. While notexplicitly labelled as such, the first three of these elements underpinned this Court’s analysis in Nur (at para. 83) and Lloyd (at paras. 26-33). I find some of them useful to consider in these appeals as well.

In Smith, the Court mentioned another possible consideration: theexistence of valid alternatives to the punishment. This consideration has provided less guidance to courts at the breach stage of theanalysis and is often treated by this Court as part of the s. 1 analysis under the minimal impairment branch of R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. I propose to follow that trend below. (

a) Choosing a Representative Offender [49] This Court’s decision in Nur instructs that the analysis of gross disproportionality should first assess the individualor individuals before the court. If the sentence is not grossly disproportionate in their case, the court must then ask whether the effects ona reasonable hypothetical offender are grossly disproportionate: para. 77. [50] Of the four appeals, the appellants in Boudreault and Larocque argued that, in their own particular circumstances,the effects of the victim surcharge are grossly disproportionate. As set out above, Mr. Boudreault lives in poverty.

At the time ofsentencing he was homeless, unemployed, and addicted to marijuana. He has never had a steady income and, given that he did notcomplete high school, his earning potential is likely very low. He faced a surcharge of $1,400. [51] Mr. Larocque has lived a life of considerable hardship. He grew up in the care of the children’s aid society and todaysuffers from serious drug addiction and mental illness. He has also been deeply impecunious. He has only disability benefits that leavehim with $136 per month once he has paid for food and housing.

He faced a surcharge of $700. [52] In Eckstein, on the other hand, the appellant did not argue that the victim surcharge would be grosslydisproportionate in his case. Instead, he relied on a reasonable hypothetical offender, which was based on the actual individual before thecourt in Michael. In that case, Paciocco J. found that Mr. Michael is an Inuit man from Iqaluit who lived in Ottawa. He was homelessand lived on a street allowance of $250 per month. He often used that money to buy alcohol, to which he was addicted.

He was convictedof multiple simple assaults, mischief damaging property, and breaches of probation. He faced a victim surcharge of $900: Michael, atparas. 36-46. [53] The Tinker appellants restricted their submissions to s. 7 and relied on the submissions of the other appellants on s.12. I would note, however, that these appellants too lived in serious poverty and faced some combination of addiction, mental illness,and disability. [54] When examined together, the circumstances of the actual appellants, Mr. Boudreault and Mr. Larocque, and thereasonable hypothetical offender, Mr.

Michael, reveal striking similarities. All live in serious poverty. All have precarious housingsituations. All struggle with addiction. In addition, Mr. Larocque and Mr. Michael grew up under child protection and have physicaldisabilities. Mr. Michael is Indigenous. [55] Without a doubt, offenders with some or all of these characteristics appear with staggering regularity in ourprovincial courts. Given this reality, referring to “hypotheticals” in this case is somewhat of a misnomer. The “reasonable hypothetical”offender urged on this Court is Mr. Michael; not a fabrication, but a real person.

In some other cases, the hypotheticals proposed are notliving examples, but are the products of reasonably foreseeable applications of the law: of analyzing who might suffer whatconsequences as the result of a challenged provision. In this case, Mr. Michael’s circumstances are “hypothetical” only in the sense thathe is not before the Court as an appellant. However, his personal circumstances are representative of many of those who are subject tothis mandatory surcharge, or, as Paciocco J. stated, “Mr.

Michael is an exemplar of the tragedy of aboriginal offenders that plays itselfout on a daily basis in our criminal courts”: Michael, at para. 46. The reality that Mr. Michael was in fact before a court establishes thereasonableness of using his characteristics and his case to measure the constitutionality of the mandatory surcharge. In my view, whenwe look at these overwhelming similarities, it is not necessary to begin with the actual appellants and then consider a proposedreasonable hypothetical. Rather, all can be analyzed together, as follows. (

b) The Fit Sentence for the Representative Offenders Would Not Include the Surcharge

[ 56 ] At this stage of the analysis, the question is what a fit sentence would be for the representative offenders according to the general principles of sentencing, in the absence of the impugned provision: Nur , at paras. 46 and 77 . In other words, it asks what sentencing judges would impose if they retained their discretion to consider the individual circumstances of the offenders and the nature of their offences: Smith , at p. 1073. In Nur , this part of the analysis required determining the fit sentence that would have been imposed instead of a mandatory minimum.

Analogously, the question here is whether a judge who had the discretion to do so would impose the surcharge. [ 57 ] Like the Ontario Court of Appeal, I conclude that the sentencing judges for Mr. Larocque, Mr. Boudreault, and Mr. Michael would not have imposed the surcharge unless required to do so by s. 737 of the Code : para. 132.

Fit and proportionate sentences would not include a surcharge that sentencing judges rightly concluded would cause undue hardship for offenders as impecunious as these. [ 58 ] This is because sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. When sentencing, the crucial issue on the surcharge is whether or not the particular individuals before the courts are able to pay, and in this case they are not.

In a constitutional context, the court is also called upon to consider the rights of particular individuals who may be affected by this punishment in a way that is grossly disproportionate, understanding that people have varied life situations and many are impecunious, impoverished, ill, disabled, addicted and/or otherwise disadvantaged.

Given this focus, it is less important that other individuals who are differentially situated may be able to pay, that some other fines set by law may be higher or that the amount of the surcharge depends on the number of offences committed. [ 59 ] The remaining question, then, is whether the mandatory additional punishment of the victim surcharge leads to a grossly disproportionate sentence for the offenders at issue. (

c) For Certain Appellants and the Reasonable Hypothetical Offender, the Victim Surcharge Is Grossly Disproportionate [ 60 ] I acknowledge that the victim surcharge is not grossly disproportionate in all cases. For many Canadians, the addition of the surcharge would not render a sentence grossly disproportionate. For an individual with adequate financial capacity, an additional financial punishment of a few hundred dollars per offence could hardly be called grossly disproportionate. [ 61 ] For offenders like Mr. Boudreault, Mr. Larocque, and Mr.

Michael, however, the story is very different: the actual imposition, operation, and effects of the mandatory surcharge, when combined, create a grossly disproportionate punishment. In their cases, I conclude that although it advances a valid penal purpose, the mandatory victim surcharge regime creates egregious effects and fundamentally disregards proportionality in sentencing. (

i) Valid Penal Purpose [ 62 ] The respondents advance two justificatory objectives for the surcharge: (1) raising funds for victim support services, and (2) increasing offenders’ accountability to both individual victims of crime and to the community generally. I accept that these are valid penal purposes. That the state provide support services to victims of crime is a laudable goal and that offenders contribute funds to that goal is a defensible choice.

Indeed, instilling a sense of accountability in offenders and encouraging acknowledgement of harm done to victims or the community are among the objectives of sentencing set out in s. 718 of the Code . [ 63 ] However, in the case of offenders like Mr. Boudreault, Mr. Larocque, and Mr. Michael, these objectives are not likely to be realized. Regarding the first objective, no funds can be raised from individuals who have none to spare: Que. C.A. reasons, at para. 130 (per Duval Hesler C.J.Q.).

Furthermore, as I will elaborate below in my description of the effects of the surcharge, the enforcement of the surcharge against impecunious or impoverished offenders places a significant burden not only on these individuals, but on our courts and penal institutions as well. These measures are likely to cost the government much more than it could ever recoup from this group of offenders and to add to the strain of an already overburdened criminal justice system: R. v. Cloud , 2014 QCCQ 464 , 8 C.R. (7th) 364, at para. 17 ; R. v.

Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631. [ 64 ] Turning to the second objective, the Ontario Court of Appeal held that the surcharge goes “some way towards achieving the valid penal purpose of holding offenders accountable”: para. 142. In my view, however, accountability is best achieved when offenders serve fair, proportionate, and definite sentences. As will be discussed in more detail below, the victim surcharge forces people to endure the possibility of an indeterminate sanction.

Imposing a sentence that sets an offender up for failure and prevents them from paying their full debt to society is hardly a means to ensure accountability. (ii) Effects [ 65 ] The surcharge regime causes four interrelated harms to offenders like Mr. Larocque, Mr. Boudreault, and Mr. Michael. These are (1) the disproportionate financial consequences suffered by the indigent, (2) the threat of detention and/or imprisonment, (3) the threat of provincial collections efforts, and (4) the enforcement of de facto indefinite criminal sanctions. 1.

Disproportionate Financial Consequences [ 66 ] First, judges imposing the victim surcharge can exercise no discretion in the event that the offender is unable to pay. This creates deeply disproportionate effects for those who are the most impoverished among us. Take Mr. Michael as an example. He had a monthly income of $250 and, in addition to his sentence, faced a surcharge of $900. While a $900 debt may sound relatively modest to some, it is a crushing sum for someone like Mr. Michael, representing, as it does, nearly four months of his income.

The effects of the same surcharge will be experienced differently by those who are differently situated. [ 67 ] A full understanding of the adverse effects of the surcharge is fostered by asking what the equivalent levy of four months’ salary would be for others in Canada. Looking purely at income, without regard to overall financial status, for someone earning the median income in Canada at 2015 levels ($70,336), an equivalent fine, calibrated to that income, would be more than $23,000

(Statistics Canada, Household income in Canada: Key results from the 2016 Census , September 13, 2017 (online)). For those earning more than the national median income, the equivalent fine could be several times greater. While these fines are exorbitant, they could still leave these higher earners with the likely ability to pay for the basic necessities of life. The same cannot be said of the representative appellants whose basic living costs are closer to or exceed their income.

As the Chief Justice of the Quebec Court of Appeal observed in her reasons, at para. 109, a fine that deprives a person of this much of their livelihood “is excessive to the point of being incompatible with human dignity”. Indeed, it can only be described as grossly disproportionate. [ 68 ] Moreover, these severe punishments will be shouldered by offenders like Mr. Boudreault, Mr. Larocque, and Mr. Michael regardless of the extent of their moral culpability. Not infrequently, criminal acts are not committed by dangerous offenders, but rather by desperate, addicted, and marginalized individuals: see e.g.

Michael , at para. 46 . The surcharge must be imposed even if an offender’s moral culpability was so low that the sentencing judge decided that they ought to be absolutely or conditionally discharged: s. 737(1) of the Code . The surcharge is also imposed in cases where the offences are committed against the administration of justice — crimes that some would consider “victimless” — such as breaches of probation or being illegally at large. That such a severe financial punishment could be imposed in such cases only deepens the depth and degree of disproportion. 2.

Threat of Imprisonment or Detention [ 69 ] Second, the surcharge is more than a debt owed to the state. As far as impecunious offenders not being incarcerated for non-payment, I recognize that s. 734.7(1)(

b) prohibits the issuance of a committal warrant where the offender has a reasonable excuse. Pursuant to this Court’s decision in Wu , inability to pay constitutes a reasonable excuse. However, offenders who are poor, homeless, and addicted will live with the threat of incarceration, and it is reasonably likely that they will spend at least some time in detention as a result of the surcharge. The threat of prison for non-payment of the surcharge is made black and white for offenders when they are sentenced.

In Ontario, when the surcharge is imposed, offenders receive a form created by the province entitled “Fine Order/Victim Surcharge”. The form sets out the amount owing and the modalities of payment. Almost half of the front of the form is dedicated to threatening the offender with imprisonment if he or she fails to pay the amount; the form includes space for the court to calculate the amount of time to be served in default. [ 70 ] Beyond the threat of prison, it is reasonably likely that these offenders will be detained for at least a short time if they default on the surcharge.

In the event of default, the court must hold a committal hearing. A police officer may arrest and detain an offender if the officer is convinced that this is necessary in order to ensure his attendance at the hearing: ss. 495 and 734.7(3) of the Code . Since the risk of non-attendance may be higher for individuals who live on the street and/or who suffer from serious addiction, many of whom may have multiple prior convictions for non-attendance at court, there is a reasonable likelihood that they will be detained pending their committal hearings.

Detention is also more likely where people have prior convictions for non-attendance at court. People who are poor, have unstable housing and/or transportation issues and suffer from addictions or other disabilities face difficulties attending court and often have accumulated numerous such prior convictions.

Eventually proving a person has a reasonable excuse at the conclusion of the committal hearing, however, does nothing to prevent individuals from being detained in advance of that hearing. [ 71 ] Once at those hearings, it may be difficult for judges to draw the line between an inability to pay and a refusal to pay. We need only look at the decisions below in these appeals to understand that judges will address this issue differently.

While some judges focussed more on the appellants’ overall circumstances, one judge held that where an offender does not set aside money, “the individual becomes the author of their own misfortune when they come to the end of the period given to pay the surcharge”: Tinker , Ont. S.C.J., at para. 41. Given the inability to predict whether a particular person can prove a reasonable excuse, it is not correct, in my view, to argue that impoverished offenders do not live under at least a threat of imprisonment.

While the stress caused by the threat of jail may not, on its own, create gross disproportionality, I reject the respondents’ contention that the stress caused by the surcharge is the same as that caused by any other debt. Most debts do not raise even the possibility of jail; this one does in two separate and compounding ways — detention before committal hearings and imprisonment if found in default.

The stress that this might cause contributes to the disproportionality of the surcharge. [ 72 ] In addition to pointing out that the scheme does not allow truly impecunious offenders to be imprisoned on default, the respondents make two counterarguments in relation to potential imprisonment. First, they argue that where an offender is unable to pay, they can avoid imprisonment by working off the fine through participation in a fine option program. The obvious problem with this purported solution is that fine option programs are not available in all provinces.

Notably, there is no fine option program in Ontario, so none of the appellants from Ontario had this possibility. More to the point, however, even in jurisdictions where a fine option program is available, it is not a realistic option for all offenders, whether due to serious mental illness, disability, or age. [ 73 ] The respondents also argue that the threat of incarceration is significantly mitigated because offenders can apply for an extension in the time to pay (s. 734.3) and the scheme does not allow truly impecunious offenders to be imprisoned even in the event of default.

This possibility, however, offers impecunious offenders little, if any, relief. While the Crown characterizes an application for extension of time as a routine administrative matter, preparing and filing a written application to a court is daunting for many, especially for someone living on the street. In addition, this is a task for which a person cannot obtain state-funded legal counsel. Even if such an offender manages to receive an extension of time, for reasons explored in more detail below, it is difficult to see how the extension does anything other than prolong the punishment. 3.

Provincial Collection Efforts [ 74 ] Third, offenders may find themselves targeted by collections efforts endorsed by their province of residence. The funds raised from the surcharge go to the lieutenant governor in council of the province in which the offence was committed and provinces are tasked with the enforcement of those surcharges. While the Code does not speak to collection, it is a direct and known consequence of the surcharge it mandates.

In terms of what actually occurs, trial judges have noted with concern that responsibility for the collection of these funds is sometimes delegated to private collection agencies. There is no evidence that these private agencies hold off on trying to collect funds from those who are unable to pay: see e.g. Michael , at para. 72 .

[75] While not directly applicable to the appellants or Mr. Michael, I would also note that the intervener Pivot LegalSociety suggested that offenders in British Columbia may have their wages and even social assistance payments retained by the provincein order to collect the amount of the victim surcharge. 4. De Facto Indefinite Sentences [76] Finally, the ultimate effect of the surcharge is that it creates a de facto indefinite criminal sanction for someoffenders.

In numerous sentencing decisions involving the surcharge, judges have found that there is no foreseeable chance that theoffender will be able to pay the surcharge: Michael, at para. 65; Cloud (C.Q.), at para. 15; R. v. Barinecutt, 2015 BCPC 189, 337 C.R.R.(2d) 1, at para. 34; R. v. Bateman, 2015 BCSC 2071, at para. 40 ; R. v. Flaro, 2014 ONCJ 2, 7 C.R. (7th) 151, at para. 47; R. v.Shaqu, [2014] O.J. No. 2426 (Ont. C.J.) (QL), at para. 83. The respondents argue that it is not open to sentencing judges to make such afinding.

This argument again relies on Wu, in which this Court held that “[i]t is wrong to assume . . . that the circumstances of theoffender at the date of the sentencing will necessarily continue into the future”: para. 31. Wu, however, must be read in its specificcontext. Most importantly, it did not involve a Charter challenge. Where a violation of the Charter is alleged, finders of fact are requiredin the course of the constitutional inquiry to determine the foreseeable effects of the law on affected individuals.

The object of theconstitutional inquiry is the validity of the impugned law, while the object of the sentencing inquiry is cardinal proportionality within thebounds of parliamentary intent. Accordingly, Wu does not stand for the proposition that the possibility of extensions of time to pay willautomatically immunize any mandatory fine from constitutional challenge, or that an offender’s ability to pay the surcharge cannot formpart of an assessment of whether there has been a breach of the offender’s rights.

Given that the debt endures until paid, the inquiry intothe constitutional validity of the surcharge may include an assessment of whether payment can or will likely be possible in the future. [77] In my view, in the specific circumstances of some offenders, the inference that the offender will not be able to paythe surcharge may be the only reasonable one. Some offenders are grappling with severe addiction and mental illness.

While the hope isalways that these individuals will undertake successful treatment for these issues, the experience is often that such treatment does notoccur or is not immediately successful. Other offenders have a permanent disability or are of such an age that the prospect of a significantincrease in income is unrealistic. For all of these offenders, the effect of the victim surcharge is that they must live with a criminalsanction that they are unable to acquit for the foreseeable future, if ever.

These offenders face repeated appearances before a court toexplain their inability to pay the surcharge — even if that inability is rooted in mental illness or physical disability. This ritual, which willcontinue indefinitely, operates less like debt collection and more like public shaming. [78] On a related point, an offender will not be able to seek a record suspension until such time as: (1) the surcharge hasbeen paid in full or jail time for default has been served (see Criminal Records Act, R.S.C. 1985, c. C-47, s. 4) and (2) the necessaryrecord suspension fee is paid.

Requiring both payments before a record suspension is even available adds to the gross disproportionalityimposed on impecunious offenders. Nor does the possibility of applying for a conditional pardon (s. 748) or a remission order (s. 748.1),which have strict conditions and are discretionary, alter the real life impacts of the surcharge. [79] The inability of offenders to repay their full debt to society and to apply for reintegration and forgiveness strikes atthe very foundations of our criminal justice system.

Sentencing in a free and democratic society is based on the idea that offenders willface a proportionate sentence given their personal circumstances and the severity of the crime. Criminal sanctions are meant to end: R. v.Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, at paras. 53 and 55.

Indeterminate sentences are reserved for the most dangerous offenders.Imposing them in addition to an otherwise short-term sentence flouts these fundamental principles and is grossly disproportionate. (iii) Recognized Sentencing Principles [80] I acknowledge the link between the objectives of the victim surcharge regime and the objective of promotingresponsibility in offenders set out in s. 718(

f) of the Code. While this objective may be relevant, it does not “sanitize a sentence againstgross disproportionality”: Nur, at para. 45. [81] The problem with the victim surcharge regime is that it elevates this one objective above all other sentencingprinciples. Most obviously, it ignores the “fundamental principle” of proportionality set out in s. 718.1 of the Code. Relatedly, it does notallow sentencing judges to consider mitigating factors or to look to the appropriate sentences received by other offenders in similarcircumstances: see Michael, at para. 91. [82] Moreover, it utterly ignores the objective of rehabilitation: s. 718(

d) of the Code. Rehabilitation must be designedwith the specific offender in mind and is best advanced by appropriate treatment and/or punishment aimed at reintegration and futuresuccess. In my view, an insurmountable criminal sanction does little or nothing to foster this objective. [83] Finally, the surcharge also undermines Parliament’s intention to ameliorate the serious problem ofoverrepresentation of Indigenous peoples in prison: s. 718.2(

e) of the Code. This Court has recognized the need to adapt criminalsentencing given “the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system”: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 34. As a result, any criminal sanction that falls disproportionately on themarginalized and vulnerable will likely fall disproportionately on Indigenous peoples: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433,at paras. 61-62 and 77.

Just as Indigenous peoples remain overrepresented in Canada’s prisons, so may we expect them to beoverrepresented at committal hearings for defaulting on a surcharge order. [84] The respondents counter these concerns over a marked departure from normal sentencing principles with fourarguments. I have not been convinced by any of them. [85] First, they contend that since the victim surcharge increases according to the number of separate offences committedby an offender, it is consistent with s. 718.1.

However, a fundamental principle of sentencing is cardinal proportionality, which isdifferent from mathematical predictability. This argument confuses adding with analysis and ignores the simple fact that the Code andthe CDSA catalogue a broad spectrum of offences, from the comparatively innocuous to the most egregious. Indeed, it is tantamount tosaying that an offender convicted of five counts of mischief deserves a more serious sentence than someone convicted of one count ofmurder. According to the principles of sentencing, such a result is absurd and, yet, it is what the victim surcharge requires.

[ 86 ] If anything, the cumulative charge-by-charge basis on which the victim surcharge is imposed increases the likelihood that it will disproportionately harm offenders who are impoverished, addicted, and homeless. These circumstances will often bring them into conflict with the law: Michael , at para. 1 . This reality alone will result in higher total amounts owing. Furthermore, any conditions attached to discharge or probation for these offenders would likely include a prohibition against consuming alcohol and drugs. It is lawful to place an addicted offender under such a condition: s. 732.1(3) (

c) of the Code ; R. v. Shoker , 2006 SCC 44 , [2006] 2 S.C.R. 399, at para. 17 . However, addiction is not cured merely by threatening state sanction. As the Yukon Legal Services Society argued, people suffering from addiction routinely accumulate numerous breaches without causing serious harm to anyone. If their addiction does not improve during their probationary period, the amount of victim surcharges for breaches imposed over that period could be in the thousands of dollars: see also Michael , para. 87 , footnote 18. In this way, for individuals like Mr. Boudreault, Mr. Larocque, and Mr.

Michael, the cumulative charge-by-charge nature of the scheme does not reduce disproportionality, but may in fact exacerbate it. [ 87 ] What is more, that the surcharge attaches to each offence will often put impecunious offenders, who are more likely to be self-represented, at an additional disadvantage. The surcharge is levied based on two main variables: the number of charges and the type of offence (summary or indictable). Both variables are subject to prosecutorial discretion. Defence counsel often work with prosecutors to minimize the number of charges and to proceed by

summary conviction instead of indictment for hybrid offences. Unrepresented people, who often plead guilty to all offences charged, may not know that they may negotiate the terms of their plea. [ 88 ] Second, the respondents argue that judges can maintain proportionality through creative sentencing options. They urge that, following R. v. Cloud , 2016 QCCA 567 , 28 C.R. (7th) 310, judges must take the victim surcharge into account when

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