R. v. Savoie, 2019 ONCJ 504

ONTARIO COURT OF JUSTICE CITATION: R. v. Savoie, 2019 ONCJ 504 DATE: July 9, 2019 COURT FILE No.: 3911-998-18-C562 BETWEEN: HER MAJESTY THE QUEEN — AND — David SAVOIE Before Justice Gilles Renaud Heard by way of a basket motion – Extension of Time to Pay Fine Reasons for Judgment released on July 9, 2019 David Savoie ...................................................................... Self-represented RENAUD J.: Introduction [1] On June 4, 2019, Mr.

Savoie sought an extension of time within which to pay a $200 victim fine surcharge which I imposed onJune 11, 2018, in respect to an offence of assault (in a domestic context) contrary to s. 266 of the Criminal Code. As is invariably thecase, Mr. Savoie sought this relief by means of a written application setting out his quite dire financial situation.[1] Although grantedone year within which to pay this fine, he made only a five dollar payment. [2] For the reasons set out below, the victim fine surcharge is struck out. In

summary, I conclude that the Court of Appeal forOntario has consistently ruled that such orders are of no effect as the enabling legislation was found to be unconstitutional by theSupreme Court of Canada in the case of R. v. Boudreault, 2018 SCC 58 . As will be discussed, the Court of Appeal has heldwithout exception that no victim fine surcharges could be collected in the future, and that all such fines paid in the past had to berefunded, as noted briefly in R. v. Truong, [2019] O.J.

No. 2281, 2019 ONCA 364, by Watt, Pardu and Nordheimer JJ.A., at para. 24, onMay 3, 2019: “Leave to appeal sentence is granted, but the appeal from sentence is dismissed, save and except that the victim surchargeordered by the sentencing judge is set aside and any funds paid as a result of its imposition ordered returned to the appellant.” [3] In considering this matter, the Court found that no useful purpose would be gained by consulting the Crown Attorney for theUnited Counties of Stormont, Dundas and Glengarry as the issue is now beyond controversy.

To tax the prosecution’s office with theburden of addressing each such case (and there are hundreds of such applications each year) would be to fail to apply the lessonsadvanced by our highest Court in the seminal case of R. v. Jordan, 2016 SCC 27 . [4] Indeed, I am of the view that the procedure followed is consonant with the guidance put forward in R. v. Felderhof (2003), (ON CA), 68 O.R. (3d) 481, as discussed ably by Justice Guy Cournoyer in his article, “Case Management Powers:From Felderhof to Jordan”. Refer to pages 221-248 of To Ensure That Justice Is Done Essays in the Memory of Marc Rosenberg.

Editedby B.L. Berger, E. Cunliffe and Justice J. Stribopoulos, Thomson Reuters, Toronto, 2017. In this context, note the extraordinaryremedial intervention shown by the Court of Appeal in R. v. Magdales, 2019 ONCA 572, per Watt, Tulloch and Lauwers JJ.A.:“[12] The appellant did not appeal sentence. However, with the concurrence of the respondent, we would extend the time for him to doso, grant leave to appeal and allow the appeal from sentence, and set aside the victim surcharge ordered by the trial judge…”

Discussion [5] It will be convenient to address this controversy by means of four thematic headings in which each judgment of the Court ofAppeal for Ontario touching upon this controversy is reviewed, followed by a brief examination of non-Ontario case law. 1) The Crown’s concession that the legislation was held to be unconstitutional [6] At the outset, I point to the instruction on this issue found at para. 5 and 6 of R. v.

J.D., 2019 ONCA 138 , as penned byMacPherson, Sharpe and Tulloch JJ.A. on February 14, 2019, albeit in the context of an Appeal Book Endorsement: 5 […] The Crown concedes that the imposition of a victim fine surcharge is now unconstitutional. 6 Accordingly, the sentence appeal is dismissed, except for the portion of the sentence imposing a victim fine surcharge, which is setaside. [7] Although there was no reference to the case of R. v. Boudreault, 2018 SCC 58 , it is obvious that the prosecution’sconcession was based on that decision by our highest Court.

At all events, if the legislation was ruled to be unconstitutional, no finesimposed previously can survive and all must be remitted, especially when an offender seeks an extension of time within which to paysuch sums, not being aware of the judgment in R. v. Boudreault. [8] Note as well R. v.

Porter, 2019 ONCA 114 , an Appeal Book Endorsement of MacPherson, Sharpe and Tulloch JJ.A.,dated February 14, 2019, at para. 4: “Finally, it is conceded by the Crown that the victim fine surcharge must be set aside.” [9] About a week later, we note language of agreement as opposed to concession, but the result was the same in the case of R. v.Drysdale, 2019 ONCA 129 , which includes these remarks, consigned by MacPherson, Sharpe and Tulloch JJ.A. on February20, 2019: “3 The Crown agrees that the victim fine surcharge should be set aside.” [10] The Reasons for Decision of Juriansz, Watt and Harvison Young JJ.A. in R. v.

Nicholson, 2019 ONCA 320 , releasedtwo days ago, include these remarks: “[9] Leave to appeal sentence is granted. The victim fine surcharges imposed on the appellant are set aside, with the agreement of theCrown. The appeal is otherwise dismissed.” [11] The Prosecution conceded this issue in a further case, as made plain by the Reasons for Decision filed in the case of R. v.Khou,2019 ONCA 189 by Juriansz, Pepall and Lauwers JJ.A., dated March 11, 2019. As we read: 12 On the sentence appeal, we are not persuaded that the trial judge made any erroneous findings of fact.

It was open to her to findthe appellant played a central role in the fraud, and that he enlisted others in carrying it out. The Crown concedes that the mandatoryvictim fine surcharge order included in the sentence should be set aside. [Emphasis added] [12] This question was addressed quite briefly at para. 1 of R. v. Latif, [2019] O.J. No. 2008, 2019 ONCA 309 (C.A.). Benotto, Brownand Fairburn JJ.A. wrote on April 17, 2019: “… He advances two grounds of appeal. The first is that the victim surcharge imposed mustbe set aside; the Crown agrees …” [13] In the quite recent case of R. v.

Lo Verde, 2019 ONCA 467, the Appeal Book Endorsement of Feldman, van Rensburg andHuscroft JJ.A., concludes with these remarks: “6 … The Victim fine surcharge is set aside on consent.” More recently, Doherty, Wattand Pardu JJ.A. wrote: “3 … The victim surcharge is set aside on consent.” Refer to R. v. Opoku, 2019 ONCA 500, an Appeal BookEndorsement. 2) R. v. Boudreault, 2018 SCC 58 , is dispositive of this issue [14] Leaving aside the foregoing, it will be of assistance to quote other cases in which R. v.

Boudreault, 2018 SCC 58 , wasinvoked in order to make plain that all victim fine surcharges were imposed in conformity with a fatally flawed scheme, and must bereimbursed, without any further authority being required. [15] Consider firstly the Reasons for Decision in R. v. Benhassen, [2019] O.J. No. 2738 (C.A. In Chambers), released on May 28,2019, and not available on the Ontario Court of Appeal website. Doherty J.A. wrote the following: 5 I see no reason to grant leave to appeal the jail term imposed. The parties agree, however, that in light of R. v.

Boudreault, 2018 SCC58, the victim fine surcharge should be set aside. I would grant leave to appeal the imposition of the victim fine surcharge only. 6 Counsel advise that the appeal on that issue will go on consent. I have told counsel to file the necessary documentation so the mattercan be placed before a panel for disposition as an appeal in writing. [16] Consider as well R. v.

Fiddes, 2019 ONCA 27 , by Simmons, Lauwers and Trotter JJ.A. [January 16, 2019] as theyprovide this binding instruction: 9 […] We also set aside the mandatory victim fine surcharge the trial judge had imposed: R. v.Boudreault, 2018 SCC 58 . The remaining terms of the original sentence remain in full force and effect. [17] A few weeks later, on January 29, 2019, Simmons, Lauwers and Trotter JJ.A. wrote the following in R. v. Wang, 2019 ONCA61 , in the context of an oral endorsement: “5 The Crown concedes that the victim fine surcharge should be set aside.” [18] The next case of interest is R. v.

Harris, 2019 ONCA 193 , decided by Rouleau, Trotter and Zarnett JJ.A., in whichjudgment occurred on March 12, 2019. As we read:

15 The appellant requests that, in light of the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58 , themandatory $200 victim surcharge imposed by the trial judge should be set aside. The respondent does not oppose this request.Accordingly, we set aside the victim surcharge. [19] The next day, March 13th, 2019, the reserved judgment in R. v. Girn, 2019 ONCA 202 , was released.

Penned by WattJ.A., with the support of Hoy A.C.J.O. and Then J. (ad hoc), it concludes with these relevant remarks: “100 I would dismiss the conviction and sentence appeals in their entirety, other than to remit any victim fine surcharge that has beenpaid in light of the Supreme Court's decision in R. v. Boudreault, 2018 SCC 58 […]” [20] I wish to pause briefly to point out that the undersigned has derived signal assistance from the judgment in R. v. Milne, 2019ONCJ 116 in this respect, as the judgment of Beninger J. was instrumental in signaling the solution to this thorny issue. [21] At all events, in R. v.

Henry, 2019 ONCA 229 , dated March 21, 2019, we read these remarks of Rouleau, Miller andFairburn JJ.A. on this subject, in the context of Reasons for Decision: “7 Finally, with respect to the victim fine surcharge, the Crown concedes that in light of the recent decision in R. v. Boudreault, 2018SCC 58 , the victim fine surcharge ought to be removed. [22] Under this rubric, the case of R. v. Stockton, 2019 ONCA 300 , is also of interest.

Decided on April 16, 2019, by Benotto,Brown and Fairburn JJ.A, it includes these germane observations: “4 … On consent, we would vacate the $600 victim fine surcharge imposed in light of the fact that the relevant statutory provision hasbeen found unconstitutional: R. v. Boudreault, 2018 SCC 59 .” [23] Noteworthy as well are the two judgments that follow, arising from other appellate courts. In the first, R. v. Ahmed, 2019 ABCA107, decided on March 22, 2019, the Alberta Court of Appeal held at para. 21: “The parties agree that the victim fine surcharge shouldbe set aside in light of R. v.

Boudreault, 2018 SCC 58 . We so order.” To the same effect is the judgment in Greer v. R., 2019NBCA 25 , at para. 4. Refer as well to

Part 4 for other non-Ontario cases. 3) Simple examples of the victim fine surcharge being set aside [24] In the case of R. v. McWatters, 2019 ONCA 46 , Simmons, Lauwers and Trotter JJ.A. produced Reasons for Decision onJanuary 24, 2019, that included these remarks: 7 […] Finally, we agree that the victim fine surcharge should be set aside. [25] An Appeal Book Endorsement styled R. v. R.G., 2019 ONCA 135 , dated February 21, 2019, under the signatures ofMacPherson, Sharpe and Tulloch JJ.A. includes these direct remarks: “9 The victim fine surcharge ($1,700) is vacated.” [26] A further example is found in R. v.

D.W., 2019 ONCA 139 . MacPherson, Sharpe and Tulloch JJ.A. endorsed theseremarks on February 21, 2019, in the context of an Appeal Book Endorsement: “8 The conviction appeal is dismissed. The sentenceappeal is allowed, but only to the extent of vacating the victim fine surcharge.” [27] In the case of R. v.

Omar, 2019 ONCA 221 , consisting of an oral judgment released on March 19, 2019, by Watt,Hourigan and Huscroft JJ.A., we read: “10 … Nor is any dissatisfaction expressed about any ancillary order, apart from the victim surcharge. 11 We grant leave to appeal sentence and set aside the victim surcharge, but otherwise dismiss the sentence appeal.” [28] Earlier, the Panel noted at para. 1: “[…] The usual catalogue of ancillary orders followed the convictions.” [29] On February 20, 2019, an Appeal Book Endorsement signed by MacPherson, Sharpe and Tulloch JJ.A. and styled R. v. Hall, 2019ONCA 130 , was released.

It included these comments: “1 The victim fine surcharge (7 fines totaling $900) is set aside. Theappeal is allowed to that extent. In all other respects, the appeal is dismissed as abandoned.” [30] In R. v. Gaetan, 2019 ONCA 118 , MacPherson, Sharpe and Tulloch JJ.A. wrote on February 15, 2019, in an Appeal BookEndorsement: “The appellant wants to abandon his appeal. The appeal is dismissed as abandoned.

If there is a victim fine surcharge inthe appellant's sentence (this is unclear), it is vacated.” In other words, the Court was prepared to set aside such an order without evenhaving counsel assert positively that such an order was in place. [31] The appeal bearing the name R. v.

Ochrym, 2019 ONCA 272 , dated April 8, 2019, saw Feldman, Trotter and FairburnJJ.A. include these comments, as found in the Reasons for Decision: “5 Those terms remain in place together with any other orders thatthe sentencing judge made at the time except for the victim fine surcharge.” [32] Doherty, Benotto and Huscroft JJ.A. remarked at para. 7 of R. v. Sullivan, 2019 ONCA 412, dated May 17, 2019: “… The partiesalso agree that the victim surcharge should be deleted…” In R. v.

Payette-McLean, 2019 ONCA 471, Feldman, van Rensburg andHuscroft JJ.A. commented, in the course of Reasons for Decision: “[4] Therefore, while leave to appeal sentence is granted the appeal isdismissed. The court also sets aside the $400 victim fine surcharge.” The Reasons for Decision in R. v. Ballantine, 2019 ONCA 498, perHoy A.C.J.O., Hourigan and Paciocco JJ.A., conclude with these remarks: “[24] ... Leave to appeal sentence is granted and the victimsurcharge order is quashed. The sentence imposed is otherwise unaltered.” In the case of R. v.

Altiman, 2019 ONCA 511, Brown J.A.wrote (with the concurrence of Benotto J.A.): “[119] As well, I would set aside the victim impact surcharges imposed on Mr. Altiman.”Justice Sharpe disagreed with the resulting sentence, but did not express any reservations as to this element of the outcome. [33] Turning to authority from the Superior Court of Ontario, in the case of R. v. Franco, [2019] O.J. No. 2681, Schreck J. wrote at

para. 50: “… If the appellant was ordered to pay a victim fine surcharge, that order is set aside: R. v. Boudreault, 2018 SCC 58, R. v.Seguin, 2019 ONCJ 247.” In the case of R. v. Bullock, 2019 ONSC 3504 , [2019] O.J. No. 3036, Sheard J. observed at para. 21:“ … He also appeals the $300 victim fine surcharge imposed as part of his sentence.

The Crown consented to the sentence appeal and thevictim fine surcharge was set aside.” 4) Guidance from other Courts [34] Having briefly pointed to cases from Alberta and New Brunswick at para. 20, the Court proposes to consider the instruction foundfrom other levels of Court. 4a) R. v. Boudreault, 2018 SCC 58 is dispositive of this issue [35] The first case to be examined is quite persuasive and could be quoted at length to justify fully the conclusion reached by theundersigned, without more authority. Indeed, in R. v.

Napayok, 2019 NWTTC 3 , Justice Malakoe provides a very well-reasoned decision setting out why the victim fine surcharge scheme no longer operates and explaining why any outstanding orderdirecting payment of such fines is without legal effect. In light of the ability of the Court to address this issue fully and concisely, I haveset out below paragraphs 4 to 7: 4 The majority decision in Boudreault struck down

section 737 in its entirety, with immediate effect. It declared that the victimsurcharge as authorized by

section 737 was a cruel and unusual punishment contrary to

section 12 of the Charter of Rights andFreedoms. The Crown did not seek to justify or "save"

section 737 pursuant to

section 1 of the Charter. 5 The Court in Boudreault did not direct how the Court should deal with offenders who were subject to victim surcharges and for whomthe appeal period had passed. The Court suggested, at paragraph 109, "that a variety of possible remedies exist" for such persons,including by way of an application under section 24(1) of the Charter. 6 In its factum, counsel for Ms. Napayok outlines five arguments in favour of the proposition that enforcing payment of the surchargeswould be illegal and unconstitutional: 9. First, the Supreme Court has struck down

section 737 as unconstitutional. Pursuant to

section 52 of the Constitutional [sic]Act, 1982 any law which is contrary to the constitution is "of no force and effect". There is simply no longer a law in force in Canadawhich permits a court to make an order for payment of a victim surcharge penalty. As

section 737 was struck down it its entirety, there isalso no longer a legal means by which to enforce any orders previously made: subsection 737(9) had adopted the enforcementmechanisms applicable to fine orders to the situation of the surcharges but that provision has also now been struck down. 10. In a democracy governed by the Rule of Law, it is a most basic proposition that punishment -- or any other form of state actionagainst an individual -- must be authorized and permitted by law.

Simply put, there is no longer a law in Canada which authorizes orpermits any enforcement of a previously-issued surcharge order. 11. Second, in the specific context of the criminal law, the constitutional principle just stated finds statutory expression in section6(1)(

b) of the Criminal Code. That provision provides that only punishment prescribed by the Code itself (or any other authorizingenactment) is to be imposed upon conviction. As of December 14, 2018, the Criminal Code no longer provides for imposition orenforcement of a victim surcharge penalty. 12. Third, as a statutory court, the Territorial Court of the Northwest Territories may only act where authorized by law. It does not haveinherent authority or jurisdiction. Therefore, with the striking down of

section 737, this Court has lost any power to impose, or to enforce,an order for payment of the victim surcharge. 13. Fourth, to now seek to enforce a penalty for which there is no legal foundation would also be contrary to the "principles offundament justice" contemplated by

section 7 of the Charter. There can be no issue, it is submitted, that the requirement for a properfoundation in law of any penalty or punishment is one of, if not the most basic foundational principles of our legal system. Furthermore,the steps which could have been taken against a non-paying offender under

section 737 prior to December 14, 2018 includedimprisonment (subs. 737(9) and s. 734) so the liberty interest of the subject is clearly engaged. 15. Finally, as the Supreme Court noted in paragraphs 106 and 107 of Boudreault, for a court to take any enforcement measures againsta person previously order (sic) to pay the surcharge would put the court itself in the position of continuing the infliction of a punishmentwhich is cruel and unusual, contrary to

section 12 of the Charter. 7 The Crown is not contesting Ms. Napayok's application. I accept and adopt the above-noted arguments submitted by her counsel. [36] The Court went on to state in terms of the issue of a remedy: 9 In providing a remedy to Ms. Napayok, my remarks are specific to the victim surcharges which were imposed under

section 737ofthe Criminal Code as it read on December 14, 2018. To be clear, these remarks do not apply to victim surcharges imposed undersection737 of the Criminal Code prior to October 24, 2013; nor under the Territorial legislation, the Victims of Crime Act, R.S.N.W.T. 1988 c.9(Supp.); nor under

section 53 of the Youth Criminal Justice Act. 10 I note, in passing, that

section 737 of the Criminal Code applied only with respect to offences under the Criminal Code andthe Controlled Drugs and Substances Act. Accordingly, the victim surcharges imposed on an adult offender with respect to a violationof

section 137 of the Youth Criminal Justice Act would appear to be invalid. 11 In my view, it would be contrary to the Charter to enforce the orders for payment of victim surcharges against Brittany Napayok.Accordingly, I declare that effective immediately, the orders for these victim surcharges, in the amount of $935.00, are not enforceableand I direct the Clerk of the Territorial Court to take no action to enforce payment.

[37] In R. v. Kowtak, 2019 NUCJ 3 , Justice Charlesworth wrote: 48 The Justice of the Peace also applied the mandatory victim fine surcharge. The victim fine surcharge is no longer payable. Theappellant's appeal was heard after the Supreme Court of Canada released R v Boudreault, 2018 SCC 58 , which declared victimfine surcharges unconstitutional with immediate effect, therefore, she is eligible to and shall have the victim fine surcharge removed fromher sentence. The Alberta Court of Appeal addressed this issue briefly in R. v. Chowdhury, [2019] A.J.

No. 662, 2019 ABCA 205 at para. 23, on May23, 2019: “… Crown counsel concedes that in light of the Supreme Court of Canada’s decision in R. v. Boudreault, 2018 SCC 58, the$1050 victim surcharge imposed is vacated.” 4b) Courts may now waive the surcharge as a matter of discretion [38] R. v. Dunbar, 2019 NSSC 96 , sets out how this line of cases is to be understood: 77 The sentencing Judge also imposed a victim fine surcharge ("VFS") upon Ms. Dunbar, allowing her five years within which to payit. Given that I now have the ability to do so, on the basis of R. v.

Boudreault, 2018 SCC 58 , (a decision which was handeddown after the sentencing judge's decision in this case) I will waive the imposition of the victim fine surcharge. Ms. Dunbar's presentfinancial circumstances are such that she would incur significant hardship if the VFS were to remain extant. [39] The same conclusion was reached in R. v.

Alas, 2019 NSSC 68 : “28 Given that it would impose undue hardship, giventhe period of imprisonment to which you will be subject and the recent case authorities which have in effect restored my ability to do so,I will waive the imposition of the victim fine surcharge.” See also para. 11 of R. v. Scordino, 2019 ONSC 1977 . 4c) The scheme is no longer valid [40] Note R. v. Blumenthal, 2019 NSSC 35 , a judgment of Chipman J., at para. 36: “The Victim Fine Surcharge provision hasbeen declared invalid as of December 14, 2018 and should not be imposed: R. v. Boudreault, 2018 SCC 58 .” In R. v.

Pijogge,2019 NLSC 15 , Knickle J. wrote at para. 59: “Given the recent decision of R. v. Boudreault, 2018 SCC 58, there will be novictim fine surcharge.” In the case of R. v. Rich, 2019 NLSC 37 , Knickle J. endorsed the same comments at para. 49, as did theCourt at para. 63 of R. v. Murphy, 2019 NSSC 77 , and the Court in R. v. Joyce, 2019 NLSC 77 at para. 55. See aswell R. v. Gill, 2019 BCSC 465 , at para. 47. [41] In this vein, I conclude by noting that in R. v. Chand, 2019 BCSC 547 , the Court remarked at para. 10 that theprosecution was seeking a victim fine surcharge, which was not allowed.

Conclusion [42] In the result, the Court concludes that the victim fine surcharge imposed in this case was imposed in application of anunconstitutional provision of the Criminal Code and it is directed to be set aside and no enforcement measures may be undertaken at anyfuture time. As noted by Justice Malakoe in R. v. Napayok, 2019 NWTTC 3 , at para. 5: “The Court in Boudreault did not directhow the Court should deal with offenders who were subject to victim surcharges and for whom the appeal period had passed.

The Courtsuggested, at paragraph 109, ‘that a variety of possible remedies exist’ for such persons, including by way of an application under section24(1) of the Charter.” In my considered opinion, this is a valid procedure in light of the absence of any factual or legal controversy, andthe most expeditious, uncomplicated and inexpensive means of ensuring a proper remedy to the applicant. [43] In addition, the $5 payment must be refunded, in accordance with R. v. Truong, 2019 ONCA 364, para. 24.

_____________________________________ The Honourable Mr. Justice Gilles Renaud Released: July 9, 2019