R. v. Chauss, 2014 QCCQ 5234

Unofficial English Translation R. v. Chaussé 2014 QCCQ 5234 JC 2217 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LOCALITY OF SAINT-FRANÇOIS SHERBROOKE "Criminal and Penal Division" No.: 450-01-086284-143 DATE: June 18, 2014 ______________________________________________________________________ PRESIDING: THE HONOURABLE CONRAD CHAPDELAINE, J.C.Q. ______________________________________________________________________ THE QUEEN Complainant v.

ISABELLE CHAUSSÉ Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Introduction [ 1 ] This dispute addresses the imposition and administration of victim surcharges since the Increasing Offenders’ Accountability for Victims Act was enacted on October 24, 2013.

Facts [ 2 ] Isabelle Chaussé pleaded guilty to one charge of assaulting a peace officer and two charges of uttering death threats related to incidents that occurred on April 1, 2014. [ 3 ] Because of the accused's prior convictions, the prosecution and the defence made a joint submission for a sixty-day custodial sentence followed by a two-year probation period.

On May 29, 2014, the Court accepted this submission and postponed the hearing of the submissions on the surcharges to June 10. [ 4 ] The three counts were laid by way of indictment, which, for Chaussé, entails the automatic imposition of a $200 surcharge per count, for a total of $600.

She waived the 45-day statutory time limit to pay and asked the Court to impose a prison sentence due to her failure to pay, to be served concurrently to the already ordered 60-day custodial sentence. [ 5 ] The Crown is opposed to this and argues that even if Chaussé waives the 45-day time limit to pay the surcharge, it is up to the fine collector to look at alternative means for the offender to pay the surcharge in the time provided (extension of time, community service).

Questions at issue [ 6 ] Can an offender sentenced to imprisonment waive the statutory time limit determined by order-in-council [1] for the payment of the surcharge? [ 7 ] If so, presented with such a waiver, can the Court take note of it, note the default, and proceed as required under

section 734.7 of the Criminal Code ?

[ 8 ] Again, if so, once the Court has so proceeded, if it finds that a warrant of committal must be issued, should the resulting custodial sentence be served consecutively to any other sentence, in light of the provisions of subsection 737(1)? Situation of the accused [ 9 ] Chaussé is 40 years old. She is unemployed and receives welfare benefits. [ 10 ] She has a criminal record that dates back to 1992.

On June 2, 2009, she was sentenced to 26 months' imprisonment for aggravated assault. [ 11 ] When she was released in November of 2010, she stayed in a halfway house until August 1, 2011. [ 12 ] During her time there, she returned to the job market (from February to November of 2011) before falling into a deep depression in November of 2011, following a relapse into alcohol and ecstasy abuse.

Since then and to this day, she is under a doctor’s care and is heavily medicated (20 pills per day). [ 13 ] She stayed in a therapy centre from April 3 to May 26, 2014, but because of her attitude, her therapy was cut short. [ 14 ] She is presently unable to pay the $600 surcharge within 45 days. Furthermore, she would not be physically or mentally able to perform community service even if she had not been declared unfit to work. At this time, she is not in a position to do community service. [ 15 ] She does not have a licence, permit or other similar instrument within the meaning of

section 734.5. Amendments to

section 737 Cr. C . [ 16 ]

Section 737 of the Criminal Code provides for the imposition of a victim surcharge. [ 17 ] The Increasing Offenders’ Accountability for Victims Act , S.C. 2013, c. 11, adopted with a strong majority in the House of Commons (253 yeas, 31 nays) came into force on October 24, 2013, and significantly amended the existing law. [ 18 ] By repealing subsections 5 and 6 of

section 737 , Parliament withdrew the Court's discretionary power to decide whether or not to impose the surcharge if offenders demonstrate that it would cause them undue hardship. [ 19 ] The only discretion Parliament allowed the Court to retain is the power to increase the amount of the surcharge and to establish an appropriate amount of time where the surcharge is accompanied by a fine. [ 20 ] If the Court convicts, the surcharge is automatically and systematically applied regardless of the offender's situation. [ 21 ] As for the amount of the surcharge, it is predetermined and ranges from $50 to $100 for offences punishable on

summary conviction and $100 to $200 for offences punishable by way of indictment (irrespective of the offender's capacity to pay) unless the offender is also ordered to pay a fine. In that case, the amount of the surcharge is from 15% to 30% of the amount of the fine imposed by the Court. [ 22 ] The time given to pay the surcharge varies. When a fine is imposed, the surcharge is payable when the fine imposed for the offence is payable, and this deadline is established by the Court imposing the fine. If no fine is ordered, a statutory 45-day time limit is granted. [ 23 ] Finally, the new subsection 9 of

section 737 provides that if offenders are unable to pay, they may avail themselves of the alternative method of payment provided under

section 736 of the Criminal Code (community service, extension of the time limit, or payment of the fine in instalments). Such a program exists in Quebec. Legislative intent [ 24 ] Neither of the parties argued that the wording of the amendments to the statute was ambiguous.

On the contrary, the wording is clear. [ 25 ] Parliament's intent is also clear: instill greater accountability in all offenders by forcing them to offer restitution to the victims of criminal offences, significantly increase the amounts collected and devoted to victims of criminal offences through various provincial programs adopted for this purpose, and finally, withdraw from the courts the power to excuse offenders from this duty of restitution even if their situation when they are convicted does not allow them to discharge it.

Sentencing [ 26 ] The Court finds it important to distinguish two notions: sentencing and administering a sentence. [ 27 ] Case law has recognized that the surcharge is a punishment, even if it is a form of restitution destined to provide services to victims of criminal offences. [2]

[28] If imposing victim surcharges may in some cases appear prima facie disproportionate, it is not up to the courts to attempt tocircumvent Parliament's clear intent by imposing an inappropriate or artificial sentence, such as imposing minimal fines. [29] In Pham, 2013 SCC 15 , [2013] 1 S.C.R. 739, the Supreme Court adds that sentences cannot be modified to the pointwhere they become artificial. 15.

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoidcollateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will. [30] Admittedly, following the amendments, the surcharge has become a minimum mandatory sentence imposed by law, and insome cases, a cumulative effect might render it completely disproportionate to the seriousness of the offences committed.

In such cases,it could infringe the fundamental rights of an accused. [31] The Court finds that, in such cases, the only possible outcome would be to contest the surcharge’s constitutionality,[3] whichChaussé has not done. [32] As the Supreme Court states in Anderson, "[i]f a mandatory minimum regime requires a judge to impose a disproportionatesentence, the regime should be challenged" (2014 SCC 41 at para. 25). [33] In Chaussé's case, however, imposing surcharges does not affect the principle of proportionality. [34] By making the mandatory minimal surcharge applicable irrespective of the offender's capacity to pay, Parliament wanted tocreate an exception to the usual sentencing principles.

The role of the fine and surcharge collector [35] The parties have agreed to define the collector's role by filing admissions[4] that can be summarized as follows: [36] The fine and surcharge collector receives his or her powers of recovery from

part XIII of the Code of Penal Procedure (ChapterC-25.1) (Act respecting the Payment of Certain Fines, R.S.Q. P-2). [37] At the expiration of the time limit given by the judge or the order for the payment of the fine, fees, or surcharge, the offender'sfinancial situation is assessed by the collector.

The collector may wait for the expiration of the offender's sentence, whatever it may be,to enter into an agreement for the payment of the amounts due in a criminal case. [38] If the offender is not able to immediately pay the balance owing, the collector may come to an agreement for the offender topay in instalments, but the balance should generally be paid off within 12 months at most.

Every situation will be assessed on a case-by-case basis, however. [39] If the collector has reason to believe that neither seizure nor the offender's financial means will be sufficient to pay the debt, heor she may suggest that these amounts be settled through community service that will generally be performed within 12 months. [40] The collector acknowledges that it is usually very difficult to recover amounts owed by offenders who receive welfare benefitsin any way other than community service.

If the offender refuses to enter into a payment agreement or to perform community service, thecollector will then ask the court to issue a warrant of committal. [41] In light of these admissions and making the necessary adjustments for surcharges, it is easy to find that, in Chaussé's case, evenif she told the collector today that she was waiving any time limit, the collector could decide to wait until she had served her sentence to: - grant her additional time to pay the surcharges and enter into an agreement with her to pay in instalments; or - suggest that she perform community service if she is unable to pay.

Should she refuse to perform community service, the collectormay, as a last resort, ask the court to issue a warrant of committal in accordance with subsection 734.7(1). [42] At that point, the Court must be convinced that the offender has refused to pay or to perform community service without havingany reasonable excuse to do so. [43] While this may be a very circuitous route to reach the same conclusion that the Court reaches today regarding Chaussé, but theCourt finds that this is the way clearly favoured by Parliament to foster the payment of surcharges.

Administration of the sentence [44] Once the surcharge is imposed by operation of the Act, the administration of this sentence is not a matter for the Court but forthe collector tasked by the statute with its recovery. [45] In the circumstances, therefore, the Court deems that any waiver of the time limit to pay the surcharge, as Chaussé has chosento invoke, must instead be addressed to the collector of fines (R. v.

Wu, 2003 SCC 73 , [2003] 3 S.C.R. 530, at para. 31). [46] It is the collector who will see whether any additional time to pay the surcharge should be awarded or if the waiver of the timelimit should be accepted, in which case the collector may ask the Court to issue a warrant of committal under paragraph (1)(

b) of section734.7 of the Criminal Code. The Court will then examine whether the offender had a reasonable excuse (indigence and inability to work)for failing to pay the surcharge or to perform community service in lieu of payment.

Concurrent or consecutive sentence [ 47 ] If a warrant of committal is issued by the Court following the non-payment of the surcharge, should the custodial sentence be served concurrently or consecutively to the sentence imposed for the offences that gave rise to the surcharges or any other punishment? [ 48 ] The first paragraph of

section 737 provides for the payment of a victim surcharge "in addition to any other punishment imposed on the offender". [ 49 ] The wording is clear and in no way ambiguous.

In the view of the Court, the custodial sentence for an unpaid surcharge must be served consecutively not only to the sentence imposed for the offence that led to the surcharge, but also to any other punishment the offender may be asked to serve. [ 50 ] Even if the imposition of a surcharge stems from the same situation or the same facts as the offence giving rise to it and concurrent sentences are in principle the norm, to proceed in this way would circumvent Parliament's clearly expressed intent. [ 51 ] Only the principles of proportionality and cumulative punishments could prevent the imposition of consecutive sentences. [5] [ 52 ] But these principles do not apply here.

Conclusion [ 53 ] To the three questions we must therefore answer as follows. [ 54 ] The Court cannot take note of the waiver of the time limit expressed by the accused or act upon it. [ 55 ] That being so, the Court is precluded at this stage from noting the default of payment and imposing a custodial sentence. [ 56 ] When a custodial sentence is imposed following a default of payment of the surcharge, this sentence must, in principle, be served consecutively to any other sentence. __________________________________ CONRAD CHAPDELAINE, J.C.Q.

Mtre Tian Meng Mtre Andy Drouin For the prosecution Mtre Benoit Gagnon Mtre Marc-André Champagne For the defence