R. v. Madeley, 2016 ONCJ 108

CITATION: R. v. Madeley , 2016 ONCJ 108 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Sunshine Madeley Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision on Constitutional Challenges to Victim Surcharge Released March 1, 2016 Ms. Louise Tansey ………………………………………………………………..for the Crown Mr. Tobias Okada-Phillips …...………………………………………………….for the Accused Paciocco J. I. Introduction [ 1 ] On December 1, 2014, 36 year old Sunshine Madeley shoplifted makeup and then offered a threatening gesture to a store clerk who had detected her.

As a result of her conduct that day she was arrested and ultimately brought before me. She pled guilty to the offence of threatening to cause death contrary to Criminal Code

section 264.1(1)(a), and to breach of probation contrary to

section 733.1(1) (

b) by not keeping the peace and being of good behaviour. [ 2 ] These are not Ms. Madeley’s first offences. She is an unemployed, drug-addicted 36 year old woman with a history of mental illness and homelessness and a long criminal record for prostitution related offences, thefts and breaches of court orders. She is obviously poor. She is supported by the “Ontario Disability Support Program,” (“ODSP”). [ 3 ] When Ms. Madeley came before me for sentencing she brought a constitutional challenge to

section to 737 of the Criminal Code , the “victim surcharge” provision. Her issue is not with the general concept of a “victim surcharge,” a sum levied against persons for each offence they are sentenced for to raise money for victim services. Her issue is with the current legislative design that makes the victim surcharge “universal,” even where its imposition causes “undue hardship.” She makes three constitutional complaints. [ 4 ] First, she urges that, contrary to

section 7 of the Charter , the mandatory victim surcharge infringes her “right to life, liberty and security of the person,” in a fashion that does not accord with the principle of fundamental justice against “arbitrariness.” Put in simple terms, she contends that since the objective of the victim surcharge legislation is to hold offenders accountable for their offence by establishing a fund to support victims, it is arbitrary to impose a levy on impecunious offenders who cannot pay.

She also contends that it is arbitrary to require payment for “victimless crimes,” in an amount that is not tethered to their offence, using an impractical regime where any money collected is to be used not for the victim of the offence but for victims generally. [ 5 ] Second, she makes the related argument that the regime also offends the principle of fundamental justice against “overbreadth.” In particular, she urges that the provision goes farther than required to achieve its purpose by imposing levies on individuals who cannot pay, including for offences that have no victims. [ 6 ] Third, she urges that the mandatory victim surcharge provision contravenes equality rights assured under

section 15 of the Charter . She complains that saddling individuals with debt obligations to hold them criminally accountable by requiring financial

contributions to a fund for victim services has a disproportionate and discriminatory effect on those who cannot discharge their debt because they are disabled, in the sense defined by the Ontario Disability Support Act , 1997, c.25. [ 7 ] The arguments before me did not address the application of

section 1, given that evidence and submissions relating to

section 1 are not material unless a prima facie breach has been found. In this decision I am therefore addressing only the prima facie breach claims made by Ms. Madeley. [ 8 ] Although the Ontario Court of Appeal has yet to rule on the constitutional validity of

section 737, there have been two decisions rendered by the Ontario Superior Court of Justice in

summary conviction appeal cases addressing the constitutionality of the victim surcharge, R. v. Tinker 2015 ONSC 2284 and R. v. Larocque , 2015 CSON 5407 . I need to consider the reach of these cases, as

summary conviction appeal court appeal decisions are binding in the Ontario Court of Justice. [1] [ 9 ] It is not contested that both the Tinker decision and the Larocque case overturned Ontario Court of Justice trial judgments that had found

section 737 to be “grossly disproportionate,” contrary to

section 12, the Charter ’s “cruel or unusual treatment or punishment” provision. The Tinker and Larocque cases are therefore binding authority before me that

section 737 does not violate

section 12, the Charter ’s “cruel or unusual treatment or punishment” provision. By necessary implication, these decisions are also binding authority that

section 737 does not contravene

section 7’s proportionality principle, which mirrors the “gross disproportionality” standard used in

section 12. [2] Since Ms. Madeley is not relying on the Charter ’s proportionality principles, however, these specific holdings do not resolve the challenges she is advancing. [ 10 ] The decision in R. v. Larocque does go on, however, to address the very Charter complaints made by Ms. Madeley. Specifically, Justice Lacelle held that

section 737 does not contravene

section 7 of the Charter because it does not imperil “life, liberty or security of the person,” and does not offend

section 15’s equality rights provision. The Crown has correctly pointed out, however, that these components of the Larocque decision are not binding before me because these findings were not technically appeal decisions, given that the trial judge in Larocque had not ruled on these issues: see R. v. Larocque , supra at para 102 . The Crown urges, however, that I should follow Justice Lacelle’s decision as persuasive. [ 11 ] The Crown goes further with respect to the R. v. Tinker , supra , decision. Ms.

Tansey contends that this decision is binding authority not only on the “gross disproportionality” issue, but also against the overbreadth argument advanced by Ms. Madeley. She relies specifically on a comment made by Justice Glass at para 36 where he said, “[n]or is the surcharge too broad a sweep against persons.” Ms. Tansey urges that this is a finding that

section 737 is not unconstitutionally overbroad. [ 12 ] In fact, this comment by Justice Glass is not a binding decision on the over-breath issue, for the same reason that the collateral aspects of the R. v. Larocque , supra , decision are not binding. As Justice Glass commented at para 12 of R. v. Tinker , supra , the trial judge in the Tinker litigation did not rule on the

section 7 claims, having resolved the litigation before him under

section 12. As a result, any

section 7 holdings that Justice Glass may have made are not appeal decisions, and are not binding on me. [3] [ 13 ] Even though I am not bound by the collateral

section 7 and 15 rulings offered in the Tinker and Larocque decisions, given the principles of stare decisis and judicial comity I should depart from the holdings made in these cases only if I am persuaded that they are wrong. In order to make that determination it is necessary that I consider the Charter complaints on their merits. [ 14 ] In this case, Ms. Madeley’s complaints are primarily poverty-based, including her

section 15 claim, which is predicated on the impact of the mandatory victim surcharge on the mentally disabled, a group that, disproportionately, is poor. [ 15 ] In light of this, it is prudent to begin by addressing, in general terms, the contention that is sometimes made that the victim surcharge imposed by

section 737 cannot be unconstitutional based on poverty-related concerns because, in practical terms, it is effectively unenforceable against the poor. The state cannot get blood from a stone, it is said, and those who are unable to pay cannot be incarcerated for non-payment.

Moreover, those who are too poor to be able to pay cannot afford licences and permits or pay for a record suspension application, altogether apart from the victim surcharge provision, leaving poor people untouched by the enforcement mechanisms that are in place to promote payment of the victim surcharge. [ 16 ] In my view this thinking cannot be right. In effect, it amounts to an argument that the provision is constitutional because it does not work. The legislation has to be taken seriously, as Parliament no doubt intended it to be.

Parliament created a mandatory legal obligation that courts are required, solemnly, to communicate to offenders in a criminal court as part of the sentence. It also created enforcement mechanisms that are intended to put pressure on those who have not paid. The impact of the law has to be understood in this context.

[ 17 ] Moreover, the impact of poverty on the ability to pay should be kept in context. Poverty does not always mean that nothing will be paid from the depressingly limited funds that the poor may have for their minimally tolerable support. The poor who make payments, either because they are ordered to, or under pressure from collection agencies, or through garnishment from their social safety net funds such as GST rebates, do so at the cost of compromising their personal welfare to a degree that other offenders do not.

To be sure, for some offenders who have accumulated serial victim surcharges, the payment of the entire composite cost of the victim surcharge can literally be unattainable. Even these people may make partial payments that they cannot truly afford, contrary to the “no real consequence” thinking. [ 18 ] Finally, “no real consequence” thinking fails to account for the impact that the law deems non-payment to have on the restoration and discharge by the offender of their debt to society.

In my view, it is unfitting to discount the messages the law intends to send about accountability and unpaid debts to society, based on stereotypical assumptions that poor offenders are too unsophisticated to feel the weight of the messages that the justice system intends to communicate. As I say, those messages about payment before accountability is achieved, and about undischarged criminal debts owed to society, are meant to be solemn and impactful.

It would be wrong, in my view, to disregard them when considering the impact the victim surcharge has. [ 19 ] Of course, the constitutional fortunes of the victim surcharge do not turn on the broad conclusion that poverty does not inure people to the consequences of the victim surcharge legislation. The answers to the constitutional questions posed in this case are to turn on the studied application of the legal standards that apply to each of the constitutional provisions engaged.

How, then, does each claim fare? [ 20 ] After considering the law and the arguments before me on the information that is legally appropriate to consider, it is my holding that

section 737 does not violate

section 7 of the Charter . [ 21 ] In order for a

section 7 claim to succeed, the impugned law must imperil the life, liberty or security of the person of the accused. As indicated, the heart of Ms. Madeley’s

section 7 complaints relate to the impact of these provisions on her, because of her inability to pay. I am persuaded that

section 7 does not imperil the life, or liberty of persons who are too poor to pay the victim surcharge, and while I hold the personal view that the victim surcharge does affect the “security of the person” of those who are too poor to pay, this is not obvious in light of the appellate findings that are binding on me that the effects of the victim surcharge are not “grossly disproportionate.” I cannot therefore say with confidence that Justice Lacelle was wrong in holding that

section 737 does not imperil security of the person, and I therefore feel impelled to follow her decision on that. [ 22 ] Since

section 737 does not compromise the life, liberty or security of the person of those who are poor, the poverty-based claims brought by Ms. Madeley flounder on the first leg of the

section 7 test and must be dismissed. [ 23 ] As for the remnant components of the

section 7 complaints, that the provisions are arbitrary and overbroad because they apply whether or not an offence has a victim, and because they raise funds for victims generally and not just for the victim of the accused’s crime, I simply do not agree. It is appropriate for Parliament to take the general position that criminal offenders should contribute to a fund for criminal victims, regardless of the nature of the offence or the presence of a victim in the case at hand. Such efforts are neither arbitrary nor overbroad. [ 24 ] I feel otherwise about Ms. Madeley’s

section 15 Charter claim, which I take to be a class claim related to mental disability generally. [ 25 ] I am persuaded that the victim surcharge has an adverse impact on the mentally disabled because of the class characteristic that mentally disabled persons are disproportionately poor. This makes the victim surcharge more onerous for the mentally disabled than it is for most other offenders, and leaves mentally disabled persons who cannot pay promptly because of their poverty, including Ms.

Madeley, subjected to overlong exposure to the law’s enforcement measures, and to the continued stigma and pressure of their undischarged criminal sentence. [ 26 ] I am also persuaded that the effect of the victim surcharge discriminates against the mentally disabled. It exacerbates the historical economic disadvantage of many mentally disabled offenders and it leaves many of them under ongoing, if not perpetual, undischarged criminal sanction. In my view, through no fault of the offender, their lingering criminal debt can only feed the stereotypical link between mental disorder and criminality.

Meanwhile, the enforcement mechanisms available to be used contribute to marginalization of mentally disabled persons, and exacerbate their exclusion from full participation in society. In short, when applied to poor, mentally disabled individuals,

section 737 enhances the perception of prejudice and the experience of displacement.

[27] This is so, in my view, even though other sentencing provisions that have a disproportionate impact on enumerated or analogousgroups are not generally discriminatory. Typically, sentencing provisions are not “discriminatory,” even when affecting a protected groupdisproportionately, because discrimination is to be measured through the eyes of a reasonable person standing in the position of theclaimant, and who is deemed to be fully informed, including about the nature of the law that is being applied.

A reasonable person in theposition of an over-represented aboriginal or black offender, for example, would understand when they are being sentenced that they arenot being sentenced because they are aboriginal or black, and that their sentence is not an affront to the group. Instead, they wouldappreciate that they are being sentenced as individuals because they deserve the punishment imposed.

Even a reasonable personsentenced to a minimum fine for impaired driving, including a characteristically poor aboriginal offender, or a poor mentally disorderedoffender, would not feel discriminated against by the fixed financial penalty. They would be deemed to know that this fine is tailored totheir specific conduct, and is imposed as an individual penalty because it is deserved. [28] In contrast, the victim surcharge is not an individual consequences imposed on particular offenders based on what they havedone, in light of their personal circumstance.

Instead, the victim surcharge is a general consequence imposed on all offenders regardlessof what they have done, and regardless of their personal circumstances.

Simply put, there is no ameliorative explanation for the victimsurcharge that can remove the reasonable perception that its disproportionate adverse effect has a discriminatory impact on the group atlarge. [29] Put more specifically, a reasonable mentally disordered offender, too poor to pay the victim surcharge promptly, or at all, wouldknow that they are being subjected to the ongoing enforcement effects and pressures of a sanction that is untethered to proportionality,moral fault, or notions of just desert, simply because of their class-related poverty.

That reasonable person would also understand that,unlike those who can afford to pay, they have not yet been held fully accountable in law for their offence, and that their debt to societylingers, simply because of their class-related poverty.

In my view, as laudable as the goal of raising funds for victim’s services is, areasonable person in this situation can only conclude that the law has an unfair and discriminatory effect on characteristically poor,mentally disabled offenders. [30] Before explaining, in full, the reasoning that has led me to the decisions I have just summarized, I will review the relevantlegislation and describe its enforcement mechanisms. II. The Victim Surcharge [31] I agree with Justice Lacelle in R. v. Larocque, supra, that victim surcharges are fines, and constitute “punishment” according tolaw.

I offered extensive reasons for this conclusion in R. v. Michael, 2014 ONCJ 360, after applying the relevant legal tests foridentifying punishment. [32] The victim surcharge is imposed by

section 737 of the Criminal Code, the “Fines and Forfeiture”

section of the Criminal Code.Subsection 737(1) provides that offenders sentenced for an offence, including through an absolute or conditional discharge, “shall pay avictim surcharge, in addition to any other punishment imposed on the offender.” As the name implies,

section 737 creates a surchargepunishment. [33] Subsection 737(2) of the Criminal Code sets out the minimum tariff for this surcharge punishment, $100 per

summaryconviction count or $200 per indictable count, unless the offender is sentenced by way of a fine, in which case the victim surcharge levyis 30% of the amount of the fine. Subsection 737(7) requires that money collected by victim surcharge is to be applied to provideassistance to victims of offences. Evidence filed before me shows that the funds that are collected are applied to a range of impressiveand worthwhile services. [34] Until October 24, 2013, courts had the discretion under subsection 737(5) to waive the victim surcharge where its impositionwould cause undue hardship. Effective October 24, 2013 that

section was repealed, making the victim surcharge universal, applicable inall cases, without exception. The materials filed before me confirm the Crown’s position that this was done because of the Government’sposition that the judicial discretion to waive the victim surcharge based on “undue hardship” was being abused, resulting in the surchargebeing imposed only exceptionally. [35] In all cases, then, the court is required by subsection 737(8) to notify the offender of the surcharge and the paymentarrangements, as is the case with a fine.

In most cases, unless the offender applies for and is granted an extension of time to pay, undersection 737(4), the surcharge must be paid within the period designated by the Lieutenant Governor in council in the province. In Ontariothe period set by the Lieutenant Governor under Order in Council 2173/99 is 30 days for surcharges on

summary conviction offences,and 60 days for surcharges on indictable offences.

If a person is sentenced by way of fine, the trial judge can, of their own motion,determine the time that the offender requires to pay the combined fine/surcharge penalty. [36] In order to assist in the collection of the victim surcharge, subsection 737(9) applies all of the collection methods available forfines, with the exception of lodging a victim surcharge order as a civil judgment. [37] Specifically, if an offender has failed to pay the victim surcharge without reasonable excuse, the offender can be committed intocustody to receive the incarceration penalties specified in subsection 734.8.

Those who can demonstrate that they are unable to paycannot be incarcerated for non-payment, however: R. v. Wu 2003 SCC 73 , [2003] S.C.J. No. 78. They are “nevertheless subject

to available collection methods short of jail”: R. v. Wu, supra at para 50. [38] One of those collection methods is provided for in

section 734.5, which authorizes provincial and federal government agencies torefuse to issue or renew any licence, permit or other instrument. This includes driver’s licences, and is broad enough to, and may include,game licences, trade licences, or even building permits. [39] In Ontario, pursuant to a Service Agreement between the Management Board Secretariat Collection Management Unit and theMinistry of the Attorney General of February 1, 2001, any outstanding victim surcharge debts are to be assigned to the CollectionManagement Unit for referral to private collection services.

Those private collection efforts can include phone-calls, letters, and threats ofenforcement. Since victim surcharges cannot be lodged as civil judgments it would seem that garnishment from wages, or the filing ofexecutions against properties would not be available. [40] In British Columbia the Province’s Revenue Service is responsible for collection, and registers the victim surcharge debt with theCanada Revenue Agency, which causes it to be paid out of any tax refund owed to the offender. This includes GST rebates issued by theFederal Government to those with minimal income: R. v.

Barinecutt 2015 BCPC 189 , [2015] B.C.J. No. 1376 (B.C. Prov. Ct). Ireceived no evidence on whether similar measures are taken in Ontario. [41] Other methods of enforcement have also been created to provoke payment of fines, including the victim surcharge. Whether anindividual is able to pay or not, and regardless of the hardship that payment might entail, an outstanding victim surcharge prevents theoffender from applying for a record suspension under the Criminal Records Act, R.S.C. 1985, c.C-47, the old “pardon.”[4] [42] In her able submissions, Ms.

Tansey for the Crown urged that in evaluating the impact of the victim surcharge on Ms. Madeley Ishould not consider the enforcement consequences I have identified, since these are provided for in other legal provisions apart fromsection 737. Ms. Tansey challenged Ms. Madeley, for example, that if she is disquieted about her disqualification for a licence, or for asentence suspension while the victim surcharge remains unpaid, she should attack the statutory provisions that create these enforcementconsequences. [43] I cannot agree.

These and the other consequences I have mentioned are state-based, collaborative enforcement mechanisms thatimpose adverse consequences for the specific purpose of encouraging payment of fines, including victim surcharges. They are part of theoverall adverse consequences the victim surcharge gives rise to. [44] Indeed, it is worth pointing out that the restraint on incarcerating offenders for non-payment of the victim surcharge arises fromthe construction of a

section 734.7(1) (b) (ii) of the Criminal Code, a different provision from

section 737. Yet the Crown submitted thatthis provision has to be considered in evaluating the impact of the victim surcharge on the poor. This was an appropriate submission, andso too are the arguments made by Ms. Madeley. To try to cabin

section 737 in isolation when evaluating the adverse consequences thevictim surcharge has would not only permit form to triumph over substance; it would undermine the integrity of the mandatedconstitutional inquiries that I am to consider, into the effects the impugned law has. [45] With that background laid out, I will explain the reasoning that led to the conclusions I have arrived at. It is convenient to beginwith Ms. Madeley’s

section 15 challenge. III.

Section 15: The Equality Rights Complaint a.

The purpose and test [46] Section 15(1) of the Charter guarantees that: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental orphysical disability. [47] Speaking generally, the function of the equality provision is to redress conduct by the state that has the purpose or effect ofdiscriminating against groups that have been historically disadvantaged as the result of prejudice or stereotyping: R. v.

Nguyen et al. 2015ONCA 278. “[S]tated another way, the goal [of

section 15] is to ensure that ‘a law … should not because of irrelevant personaldifferences have a more burdensome or less beneficial impact on one than another’”: Symes v Canada (SCC), [1993] 4S.C.R. 695 at para 113. [48] Since

section 15 is intended to address disadvantage, it can be used to challenge laws that are passed for discriminatory purposes,as well as laws that are passed for laudable purposes that have a discriminatory effect: Quebec (Attorney General) v. A. 2013 SCC 5, [2013] S.C.J. No. 5, paras 196-198. Ms. Madeley does not contend that

section 737 violates

section 15 because it was passedwith the intent of discriminating against persons with “mental disabilities.” Her claim is that

section 737 has a disproportionately

negative impact on persons with “mental disabilities.” [ 49 ] The legal test used to determine “whether the challenged law violate[s] the norm of substantive equality in section 15(1) of the Charter ” has evolved over time: Withler v. Canada (Attorney General) 2011 SCC 12 at para 2 [ Withler ] . Currently a two-stage test, initially described in R. v. Kapp 2008 SCC 41 , and affirmed in Withler , supra at para 30 , is employed for

section 15 complaints. The evolution of the test is discussed, at length, in Quebec (Attorney General) v. A . 2013 SCC 5 [ Quebec ] . Even in Quebec , supra , lingering disagreement is expressed as to the precise meaning of the test. All of these authorities agree, however, that a prima facie

section 15 complaint is to be approached by posing two questions.

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [ 50 ] The first stage in the inquiry, “Does the law create a distinction based on enumerated or analogous grounds,” ensures that “the courts address only those distinctions that were intended to be prohibited by the Charter ”: Withler , supra at para. 33 . [ 51 ] The second stage, “Does the distinction create a disadvantage by perpetuating prejudice or stereotyping,” is intended to identify the discriminatory impact that

section 15 means to address: Withler , supra at para. 34 . [ 52 ]

Section 15 claims are different in nature from most other Charter violations, not only in their obvious complexity. They are, in essence, group claims. While it is necessary for the claimant to show that they have membership within the identified group, as the

section 15 test illustrates the analysis focuses ultimately upon the impact of the law on the group to which the complainant belongs. In other words, the complainant can call into aid the way in which the law impacts on members of the group generally, rather than solely on her specifically. [ 53 ] I propose to resolve the prima face equality claim before me by asking these questions, in turn, dealing with doctrinal controversies as I proceed. b.

Stage 1 of the test – Distinction on an Enumerated or Analogous Ground [ 54 ] To satisfy stage 1 of the test: “[T]he claimant must establish that he or she has been denied a benefit that others are granted or carries a burden that others do not by reason of a personal characteristic that falls within the enumerated or analogous grounds of s.15(1)” [ 55 ] In effect, stage 1 of the test has two analytical components - identifying the distinction in issue, and determining whether that distinction is based on an enumerated or analogous ground: Quebec , supra at para 348.

Given the issues raised in this case, I find it useful to approach these two components in reverse order. [ 56 ] First, I will determine whether the personal characteristics relied upon qualify as an enumerated or analogous group within the meaning of

section 15. In resolving this question I will determine whether Ms. Madeley is a member of the enumerated or analogous group she claims, for if she is not, she lacks standing to advance this Charter complaint. [ 57 ] Second, I will determine whether the victim surcharge creates an adverse distinction based upon the personal characteristics of membership in the enumerated or analogous class being claimed. In R. v. B.(T.M.) [2013] O.J. No. 3413 (Ont. Sup. Ct. J.) , at para 43 , Justice Code insisted that the distinction must be a “meaningfully different effect” to qualify.

Although this qualitative component is not generally articulated in the test, it must be true that a claim cannot be properly based on a minimal or meaningless distinction. At the same time, to meet the

section 15 stage 1 test, it is not necessary for the denial of a benefit or the burden to be crushing, oppressive, or even grossly disproportionate. i. Is the claim based on an Enumerated or Analogous Class? 1. The Class Invoked [ 58 ] Counsel for Ms. Madeley contends that the relevant personal characteristic for the purpose of the analysis is that Ms. Madeley is “an offender with a disability as defined by the Ontario Disability Support Act .” The Crown is correct in stating that “ODSP offenders” is not an enumerated or analogous class. Protected classes under

section 15 are not created by statutory eligibility requirements. They are recognized, instead, based on personal characteristics linked to historical disadvantage. I have no basis for concluding that persons receiving “ODSP” are, by virtue of that specific class membership, historically disadvantaged as the result of prejudice or stereotyping.

[59] On its face, this may appear to dispose of the

section 15 Charter claim because I am to rule on the Charter application beforeme. To summarily dismiss this application on that basis, however, would be churlish. In spite of how counsel articulated the relevantclass, it is evident both from the written application and oral submissions received that Ms.

Madeley’s complaint is that she suffers froma mental disability, and that the victim surcharge levy is more burdensome and discriminatory for her because of her mental disabilities.In other words, her claim is based on “mental disability,” a specifically enumerated class that unlike other enumerated classes includespersonal circumstances that “may be, but [are] not necessarily immutable”: Granovsky v. Canada (Minister of Employment andImmigration) 2000 SCC 28 , [2000] S.C.J. No. 29 at para 28. [60] The Crown disagrees with this characterization. It contends that even if Ms.

Madeley is “mentally disabled,” a claim that is notconceded, Ms. Madeley’s complaint is, in substance, about the impact of the victim surcharge on the poor, and “[i]t is well establishedthat income level is not a personal characteristic”: Guillemette v Canada (TCC), [1997] T.C.J. No. 589 at para21(Tax Court of Canada); Re Affordable Energy Coalition 2009 NSCA 17; R. v. Banks (2007), 2007 ONCA 19 , 216 C.C.C.(3d) 19 (Ont. C.A.) [61] It is true that “poor people” are not an enumerated or analogous class.

This is because “the term [poor people] signifies anamorphous group” of persons whose poverty can arise in numerous ways and for various reasons: R. v. Banks, supra at para 104. HadMs. Madeley said “I am bringing my claim on behalf of poor people,” the Crown argument would prevail. But that is not what she isdoing. As indicated, she is bringing this claim on behalf of mentally disabled persons, on the footing that poverty is a class characteristicthat results in discriminatory effects against disabled persons if the victim surcharge is applied indiscriminately.

In substance, then, theCrown’s challenge to the integrity of the class is based on the theory that if the essence of a complaint made by a member of anenumerated group relates to the poverty or the income level of members of the group, it is not a tenable

section 15 Charter claim. [62] In spite of the able argument presented, this cannot be right. It would mean that gender-based equality claims grounded in thefeminization of poverty, or equal pay for work of equal value complaints, could not be advanced under

section 15 because they are, insubstance, complaints about income level. Yet in Quebec, supra the majority of the Supreme Court of Canada found a prima faciesection 15 breach based on the differential treatment of economic remedies on relationship break-up between married and non-marriedpartners, and in Newfoundland (Treasury Board) v. N.A.P.E. 2004 SCC 66 , [2004] 3 S.C.R. 381 the Supreme Court of Canadaagreed with the courts below that legislation abolishing equal pay protection violated

section 15 of the Charter. In both cases thelegislation was saved only under

section 1. [63] The decision in Canada v. Symes, (SCC), [1993] 4 S.C.R. 695, is also inconsistent with the Crown’s position. Inthat case the sex-based equality complaint did not fail because, in substance, it was a mercenary claim related to after-tax income levels.The Court agreed that it was dealing with a sex-based

section 15 Charter claim, but it refused that claim only because there wasinsufficient evidence of a discriminatory effect. [64] Having said this, it is true that most poverty related claims do not have merit. This is not because reliance on poverty within anenumerated or analogous group destroys the integrity of a class claim. Poverty related

section 15 claims tend to lack merit because thelegislation that affects poor people disproportionately is not discriminatory in the sense intended by

section 15, for the reasons I explainbelow. Suffice it to say for now that, even though it may be more difficult for a poor person to pay public flat fees such as bridge tolls, orhydro charges, requiring them to do so does not create prejudice or feed a stereotype, or exacerbate disadvantage. [65] The Crown also urged in the alternative that a poverty-related claim cannot shelter under the class of mentally disabled persons,because not all mentally disabled persons are poor and therefore prone to the “unequal” consequences complained of. This, too, ismisconceived. A

section 15 complaint is not defeated simply because not all persons within the group would suffer an adverseconsequence: Quebec, supra, at paras. 354-356. Sue Rodriguez did not lose her

section 15 complaint because not all physically disabledpeople are unable to commit unassisted suicide: Rodriquez v. British Columbia (Attorney General) (SCC), [1993] 3S.C.R. 519. She lost it because the inequality she experienced was justified under

section 1. And in Brooks v. Canada Safeway Ltd. (SCC), [1989] 1 S.C.R. 1219 at 1247 Chief Justice Dickson did not accept the submission that was made that discriminationbased on pregnancy is not discrimination based on sex because not all women are pregnant. As long as the triggering condition is anhistorical disadvantage that is characteristic of members of the enumerated or analogous category, it need not be a universal condition. [66] A

section 15 claim that is linked to poverty may well flounder, then, because of a finding that poverty is not an historicaldisadvantage within the enumerated or analogous class, or because the law does not discriminate against that class, but a claim will notfail simply because it involves a complaint that is intimately related to poverty within a group. [67] The claim before me therefore alleges discrimination against an enumerated class - the mentally disabled - and can proceed to thenext stage of analysis, provided Ms. Madeley is a member of that class.

2. Ms. Madeley’s Membership in the Class [68] Charter authority offers no fixed definition of “mental disability” to assist me in testing Ms. Madeley’s standing. This is bydesign. As Justice Sopinka noted in Eaton, v. Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241 at para69, disability “means vastly different things depending upon the individual and the context.” In Granovksy v. Canada (Minister ofEmployment and Immigration) 2000 SCC 28 , [2000] S.C.J.

No. 29 at para 29, Justice Binnie therefore commented: “The concept of disability must … accommodate a multiplicity of impairments, both physical and mental, overlaid with a range offunctional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called ‘disabled’individual may not be impaired or limited in any way at all.” [69] When Justice Binnie made this comment, he did so influenced by the World Health Organization’s approach to “disability.” Thatapproach is captured in “Disabilities,” World Health Organization: available at http://www.who.int/topics/disabilities/en/. : “‘Disabilities’ is an umbrella term, covering impairments, activity limitations, and participation restrictions.

An impairment is a problemin body function or structure: an activity limitation is a difficulty encountered by an individual in executing a task or action: while aparticipation restriction is a problem experienced by an individual involved in life situations.

Thus, disability is a complex phenomenon,reflecting an interaction between features of a person’s body and features of the society in which he or she lives. [70] As a result, Justice Binnie explained that a proper analysis of “disability” cases requires attention to three separate components,(1) the physical or mental impairment, (2) the “functional limitations” (“real or perceived,” attached to the physical or mentalimpairment, and (3) the “socially constructed handicap,” being the wrongly attributed, exaggerated, or unjustified consequences that maybe applied to whatever limitation exists: Granovsky, supra at paras 34 -37.

It follows that the conception of “mental disability” that isused to identify standing to bring a

section 15 claim and in evaluating the integrity of a “mental disability” claim must accommodatethese concepts. Since a “socially constructed handicap” is not a necessary component of a disability claim, a proper conception of aphysical or mental disability must at least accommodate the first two components, namely, a physical or mental impairment producingreal or perceived functional limitations. [71] I could rest content with this, but out of an abundance of caution I will use more conventional construction techniques to offer amore precise working definition to be used in evaluating whether Ms.

Madeley has brought a proper “mental disability” claim.

This moreconventional approach to construction involves giving the term its natural meaning, read in context, in light of the purpose of theprovision. [72] Beginning with the ordinary meaning of the term, “disability” usually means “a handicap,” or “a lack of some asset, quality or attribute that prevents someone from doing something”: Canadian Oxford Dictionary (2nd ed), (Don Mills Ontario: Oxford UniversityPress, 2004) Having said that, and consistent with what Justice Binnie said in Granovksy, supra, a “disability” does not require acomplete lack of ability.

The term “disabled” refers to persons “having reduced physical or mental abilities”. [73] The term “disability” is frequently found in legislation. In Battlefords and District Co-Operative Ltd. v. Gibbs (SCC), [1996] 3 S.C.R. 566, for example, the Supreme Court of Canada dealt with the term, “disability,” in the Saskatchewan HumanRights Code, S.S. 1979 c.S-24.1.

As the ordinary meaning of the term would suggest, the definition referenced “retardation,”“impairment,” “dysfunction” “disorder.” [74] This is also the sense in which the term “disability” is used in the Ontario Disability Support Act, section 4(1), which describes acircumstance in which “the direct and cumulative effect [of the relevant condition] on the person’s ability to attend to his or her personalcare, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of dailyliving.” [75] The term “mental disability” requires, of course, that the disability being claimed must arise from a person’s mental functioning.While there can be controversy about the ultimate reach of the concept of a mental disability,[5] it is obvious that it embraces at least“mental disorders” that impair proper functioning.

The term “mental disorder” is used in both the Saskatchewan Human Rights Code,referred to above, and in the Ontario Human Rights Code to capture mental disabilities. [76] Together, the natural meaning of the term “mental disability” would therefore embrace persons who suffer from a mental

disorder that has the effect of materially impeding their proper functioning, including their ability to function in the community. [77] A purposive

interpretation of the term, “mental disability,” also supports the cautious, non-exhaustive meaning that I have justoffered. In Eaton, supra at para 66, Justice Sopinka spoke of

section 15’s role in, “ameliorating the position of groups within Canadiansociety who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons.” And in R. v.Swain (SCC), [1991] 1 S.C.R. 933 Chief Justice Lamer spoke of the mentally ill in the context of

section 15 of theCharter, noting that the provision addresses the damaging stigma of mental illness, which includes the prolonged systematic isolationand segregation of the mentally ill from mainstream society, “devalued, ridiculed and excluded from participation in ordinary social andpolitical processes.” [78] Even a conservative application of the ordinary interpretive principles would therefore define the term, “mental disability,” asincluding persons who suffer from a mental disorder that has the effect of materially impeding their proper functioning, including theirability to function in the community. [79] So, does Ms.

Madeley suffer from a mental disorder that has the effect of materially impeding her proper functioning, includingher ability to function in the community? Mr. Phillips argues that Ms. Madeley must have a “mental disability” because she receives“ODSP,” which is paid only to those who are disabled. I cannot act on this submission. In law, Ms. Madeley’s receipt of ODSP, at best,represents a hearsay opinion held by someone who has not testified before me that she is disabled. I must therefore look at otheravailable evidence. [80] I will begin with evidence of her mental disorder. Ms.

Madeley testified that she suffers from severe anxiety, depression, andpost-traumatic stress disorder from the many years she has spent on the streets. She testified that she has recently been diagnosed withbipolar disorder. She has been prescribed and takes Seroquel and Celexa for these conditions. The Crown did not challenge this evidenceduring cross-examination.

Indeed, presentence report documentation from as long ago as 2004, secured by the Crown, verifies that Ms.Madeley had once been taken to a hospital under the Mental Health Act for suicidal ideation, and that she suffers from ADHD, and wasrecommended by the probation officer to consult a family doctor for issues of depression. She has also had a Canadian Mental HealthAssociation worker for some time. [81] The evidence before me also shows that Ms. Madeley struggles to participate effectively in society. She has lived long periods ofher life on the streets, and has not had legitimate employment for many years.

She has lost two children to child welfare agencies, and isa chronic recidivist. She has had only sporadic success with her rehabilitative efforts. Indeed, she was unable to organize herselfadequately to complete a full presentence report in preparation of her sentencing before me, and the Probation and Parole Services Reportof June 23, 2015 confirms that she has struggled to “get her act together.” [82] The Crown nonetheless challenged the claim that Ms. Madeley is disabled by urging that she is capable of working either now,or will be in the near future. Reliance was placed upon Ms.

Madeley’s testimony that she has worked in the past, is planning on taking astabilization program offered by the Canadian Mental Health Association to learn life skills, and is hopeful that she will be able to findwork. In my view, Ms. Madeley’s condition cannot be measured either by her distant past, or by her current hopes.

I am satisfied on theevidence before me, to the constitutional standard that applies – the balance of probabilities - that she is incapable of maintaining gainfulemployment and will remain dependent on social assistance in the foreseeable future. [83] The Crown also challenged the correlation between Ms. Madeley’s mental disorder and any disability she might have. Ms.Tansey contended that, on the evidence, Ms. Madeley’s inability to participate in society may be related to her criminal record which Ms.Madelely herself focused on as her employment obstacle, or on Ms.

Madeley’s drug addiction, instead of any mental illness she mayhave. [84] To be sure, it would have been prudent for Ms. Madeley’s counsel to have provided medical evidence verifying the relationshipbetween Ms. Madeley’s mental illnesses and the challenges she has had in coping. Without attempting to resolve the “chicken and egg”relationship between Ms. Madeley’s addictions and criminal record, and her mental illness, however, the fact that other pressures mayalso impede her proper functioning does not negate a “mental disability” finding.

There is no question that if her mental health woeshave not caused her to become an addicted criminal, her mental health has played a material role. [85] This is not a matter of conjecture but of history. As described, mental health services have played a large role in assisting Ms.Madeley to try to cope in society. Her probation officer, responsible for her rehabilitation, suggested that she receive help with herdepression, she is provided with CMHA assistance in the community, and as the Crown pointed out in argument, Ms.

Madeley’srehabilitation aspirations rest with a mental health stabilization program offered by the CMHA.

[ 86 ] Given this and the conditions she describes, I am satisfied on the balance of probabilities that Ms. Madeley’s mental illness contributes materially to her disability. She therefore has a mental disability within the meaning of

section 15, and the standing to bring this challenge. ii. Does

section 737 create a Meaningful Distinction based on Mental Disability? [ 87 ] Does the victim surcharge, then, create a meaningful distinction, either in purpose or substance, based on mental disability? [ 88 ] Traditionally, in order to demonstrate an adverse distinction the Charter claimant would have to properly identify a “comparator group,” and show that the claimant group is being treated differently, and in a less favourable way, than that comparator group.

Indeed, in Granovksy , supra at para 45 Justice Binnie described the identification of the comparator group as “crucial” to a claim of unequal treatment. [ 89 ] In Withler v Canada (A.G.) ., supra, however, the Court made clear that even though an inquiry about “distinctions” is inherently comparative in nature, the identification of specific comparator groups is not a necessary component of a

section 15 claim.

As Justice Lebel explained in Quebec , supra at para 167, while “it may be helpful at the stage of determining whether a distinction exists to compare the group of which the claimant is a member to other groups…a formalistic or artificial approach” should not be taken. [ 90 ] In Withler , supra , at para 40 , the Chief Justice and Justice Abella explained for a unanimous Supreme Court of Canada that the Court had moved away from a mandatory and focused use of “comparator groups” because insisting on the identification of comparator groups was distracting courts from the real issue of interest – “the elimination from the law of measures that impose or perpetuate substantive inequality.” [ 91 ] Specifically, the Court catalogued a list of concerns with the use of “mirror comparator groups,” including that the exercise of identifying a specific comparator group is too imprecise and inherently controversial to be allowed to determine the outcome of a Charter claim (at para 42-54, 56).

Moreover, such comparisons can emphasize formal rather than the substantive differences that

section 15 addresses (at para 57), and focusing on a particular group may fail to account for “interwoven grounds of discrimination” (at para 58). Ultimately as Justice Lebel makes clear in Quebec , supra , at 167-169 in his historical excursion through the

section 15 jurisprudence, the loosening of the comparator group inquiry was brought about so that the “discrimination” inquiry at the second stage of the analysis would become the focus in a

section 15 challenge. [ 92 ] The “adverse distinction” inquiry, therefore, is not about whether the enumerated or analogous group is being treated more poorly than some other specific category of persons. Nor is it about discrimination. As indicated, its function is simply to ensure that “the courts address only those distinctions that were intended to be prohibited by the Charter ”: Withler , supra at para. 33 .

At stage 1 what is required where the impugned “law purports to treat everyone the same” is for the applicant to show that the law “has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds”: Withler , supra at para 64 .

As the Withler Court explained, this kind of distinction can be demonstrated by showing historical or sociological disadvantage, and by focusing on the effect of the law, and the situation of the claimant group. [ 93 ] For the reasons provided, when the Withler Court commented that the search for an adverse distinction includes looking at the “effect of the law,” it was not inviting, at this stage, a search for discrimination. Instead, it was calling for an inquiry into the existence of adverse effects from the impugned law that are related to historical or sociological disadvantage.

In effect, Stage 1 is a hurdle that must be crossed to get to the essence of a

section 15 claim, which is the Stage 2 discrimination inquiry. [ 94 ] For this reason, I cannot find guidance in the holding in R. v. Larocque , supra , at para 25 , that the victim surcharge does not have an adverse effect on the mentally disabled. This holding was based on the failure by Mr. Larocque to show that the surcharge aggravated or perpetuated disadvantage. With respect, whether a law aggravates or perpetuates disadvantage is about discrimination, rather than the existence of a material adverse effect: see Withler , supra at paras 34-39 .

Indeed, the Stage 2 discrimination inquiry asks expressly, “Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?” The issue of whether the victim surcharge has an adverse effect on the mentally disabled therefore should have been resolved without consideration of aggravated or perpetuated disadvantage. [ 95 ] I must therefore determine without the benefit of a guiding decision whether the victim surcharge “has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds.” More precisely,

I have to resolve whether the victim surcharge has a disproportionately negative effect on Ms. Madeley and other mentally disabledpersons, because of factors relating to their mental disability. [96] Ms. Madeley did not provide statistical or expert evidence confirming the impact of the mandatory imposition of the victimsurcharge on the mentally disabled. The “distinction-based” proposition being offered, however, is straightforward.

It is that poverty isan historical or sociological disadvantage that makes it more difficult for many members of the group to pay the victim surcharge andavoid its enforcement strategies, the way that others who are not similarly situated can generally do. [97] It is not difficult for Ms. Madeley to verify the first part of that claim, that poverty is an historical or sociological disadvantagefor mentally disabled persons.

The fact that the government of Ontario has established the Ontario Disability Support Program to providepublic funds specifically and exclusively to poor disabled persons to assist in sustaining them is proof enough that this is so. [98] Even leaving this aside, the relationship between mental disability and poverty is notorious and indisputable, entirely fit forjudicial notice. So, too, is the proposition that poverty is characteristically more common within the class of mentally disabled persons,than it is in the general population of potential offenders. [99] In Eldridge v.

British Columbia (Attorney General) (SCC), [1997] 3 S.C.R. 624 at para 56 the Supreme Courtof Canada provided a detailed rendition of the comparative poverty of disabled individuals, relative to others: “It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons withdisabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement,subjected to serious stereotyping and relegated to institutions.

This historical disadvantage has to a great extent been shaped andperpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the‘equal concern, respect and consideration’ that s.15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudesof pity, charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms. Oneconsequence of these attitudes is the persistent social and economic disadvantage faced by the disabled.

Statistics indicate that personswith disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face muchhigher unemployment rates, and are concentrated at the lower end of the pay scale when employed.” (emphasis added) [100] It is instructive that in identifying the historical and social disadvantages of the disabled, including the mentally disabled, theCourt in Eldridge was not troubled by the fact that not all disabled persons are poor.

The prevalence of the experience of poverty wassufficient for it to be characteristic within the class of the disabled persons, even though there are no doubt many disabled individualswho have avoided this outcome. [101] It is also instructive that the Supreme Court of Canada did not shy away from recognizing poverty to be group characteristic, eventhough there are others who are not mentally disabled but who are poor.

I point this out in response to the submission by the Crown thatthere cannot be a poverty-based distinction between those who are mentally disabled and others, if others are similarly affected bypoverty. This is not correct. The law has never insisted that a

section 15 claim is defeated if there are members outside of the class whoare also affected adversely by the law in the same way the enumerated or analogous group is disadvantaged by it. This is because thepurpose of

section 15 is not to ameliorate disadvantages that are experienced only by the enumerated group in question. Its goal is toensure that a law will not be disproportionately burdensome for members of the enumerated or analogous class because of irrelevantpersonal differences that are characteristic of that class: Symes, supra at para 113. [102] In Symes, supra, for example, the Court did not dismiss the Charter claim on the simple basis that even if womendisproportionately bear child-care costs, so too do some men.

The Court considered the claim on its merits, rejecting it only because theclaimant could not show that child-care costs are actually paid disproportionately by women. Similarly, in Eldridge, supra, the Courtwas not concerned that deaf persons are not alone in having difficulty securing medical services because of communication problems.The

section 15 claim, based on the failure to provide sign language interpreters, succeeded even though those who do not speak anational language are apt to have similar problems. And in Inglis v British Columbia (Minister of Public Safety) [2013] B.C.J. No. 2708(B.C.S.C.) the cancellation of the mother-baby program had a distinct impact on aboriginal women because of the disproportionatenumber of aboriginal inmates. It did not matter that not all women affected were aboriginal. Ultimately, the fact that persons outside agroup may also be experiencing the same disadvantage does not destroy a

section 15 claim. [103] For the reasons expressed I have no doubt that poverty is sufficiently more common within the class of mentally disabled personsthan it is in the general population to constitute a historical or social disadvantage of disability. The pay-dirt question in this Stage 1inquiry, then, is whether, because of this class characteristic, the victim surcharge imposes a material disadvantage on the mentallydisabled.

[ 104 ] As indicated, Ms. Madeley seeks to support this contention by pointing not only to the financial impact that the victim surcharge can have on poor, mentally disabled persons such as herself, but also because of the enforcement consequences that the victim surcharge carries with it when payment is delayed or not made because of a lack of funds. [ 105 ] As is evident in the comments I have made and the legal tests I have cited, since Ms. Madeley’s section15 Charter complaint is a group claim, it would not be appropriate for me to focus solely on her personal situation.

I am required to consider, as well, the impact of the law on mentally disabled persons generally. This was true even in the “comparator group” era, where the heart of the inquiry was about group impact, and it remains true now. As the Withler majority expressed it, I am to ask whether the impugned law “has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds” (emphasis added). [ 106 ] As I cautioned in R. v.

Michael , supra , in considering the impact the victim surcharge has it would be misleading to think only of the tariff for a single offence, namely, $100 for a

summary conviction crime and $200 for an indictable offence, or a 30% surcharge on a sentence imposed by way of fine. This is because anyone familiar with the business of the provincial courts is aware that it is common for offenders, including mentally disabled offenders, to be bound at the time of their offences by court orders relating to their behaviour. As is the case with Ms.

Madeley for the charges I am now considering, individuals are frequently, if not typically, prosecuted and convicted not only of the substantive offence they commit, but also of one or more breach charges. [ 107 ] Moreover, it is common for offenders, particularly homeless offenders, many of whom are mentally disabled, to accumulate a series of charges on different occasions. This is also true in the case of Ms. Madeley. Subsequent to her plea before me on these charges, Ms.

Madeley was rearrested on other offences. [ 108 ] The point is that it is not atypical for offenders, including mentally disabled offenders such as Ms. Madeley, to accumulate victim surcharge obligations in the many hundreds, even thousands of dollars. The cost imposed by the victim surcharge on offenders cannot therefore be disregarded as de minimis or immaterial. The levies are often significant, and are invariably harsher for those who are poor, and who have less ability to pay. [ 109 ] Ms. Madeley’s particular example is illustrative. As indicated, she depends on public assistance.

On the evidence before me she receives accommodation and disability benefits in the range of $600 monthly, minus the cost of her bus pass, leaving her approximately $100 a week to live on. She testified that in light of her limited means the $200 she faces in victim surcharges for the offences I have found her guilty of would impose a significant burden on her. While being granted an extended time to pay would ease things, she testified that the money still comes out of the modest amount she has to maintain herself. Proportionately, even the $200 that

section 737 levies for the offences now before me is an imposing sum. For her, $200 is the entire amount available for her living expenses for half a month. [ 110 ] Without deciding whether its impact is discriminatory, given the disproportionate prevalence of poverty among mentally disabled offenders and the significance of the levy, in my view, the victim surcharge scheme clearly creates an adverse distinction on its class members relative to offenders generally. [ 111 ] I also agree with Ms.

Madeley that the adverse impact the victim surcharge has on mentally ill offenders is not confined to the weight of the direct financial cost I have just described. Offenders who cannot pay promptly, or at all, because of their poverty are subjected to significant, ongoing enforcement implications I describe above, that can easily be avoided by those who are not poor. [ 112 ] First, offenders who are not completely unable to pay can be incarcerated for not paying the victim surcharge, regardless of the level of hardship that payment entails.

Naturally, the law cannot provide clear lines about how poor is too poor to pay. As I noted in R. v.

Michael , supra , at para 74 , “Anyone on the margin who owes outstanding criminal levies and who attends to their obligations will be left to wonder whenever spending money on themselves or their families whether that expenditure was necessitous enough to justify, or whether spending that money in this way could bring them to jail.” [ 113 ] Second, whether individuals can pay or not, they are subject to ongoing collection efforts, unless they have the administrative wherewithal and organizational ability to apply for discretionary extensions of time to pay.

Certainly, in British Columbia, where such extensions have not been extended, even individuals who are completely incapable of paying can have money deducted from the GST rebates they might otherwise receive, and in Ontario they can be subjected to collection efforts, including demand letters and referral of their debt to collection agencies.

[114] Third, as described above, so long as victim surcharges are outstanding, individuals are ineligible for driver’s licences or otherlicences or permits, whether they have sought and received extensions to pay or not. They are also ineligible to apply for recordsuspensions, the current conception of a “pardon.” [115] Fourth is the point that I made in R. v. Michael, supra, at para 75: “Exposing those who are poor … to perpetual, unsatisfied, sentencing obligations also deprives them of the ability to repay their debt tosociety.

Because they do not have the means to repay, they lose the opportunity to be restored. I do accept that many offenders lack thesophistication to delve into deep questions of legal philosophy and moral responsibility…. Still, the notion of just punishment has longcarried the promise that after the eye is given for the eye, the offender has discharged their debt and reconciliation can begin. The wholeidea of restorative justice legislatively endorsed in the Criminal Code and recognized to be of cultural significance to aboriginaloffenders … depends on reconciliation.

Indeed, some legal philosophers have justified punishment on the basis that it is a kindness tooffenders to punish them since it permits them to heal. Whether this is persuasive or not, the flip side is. It is a cruelty in some measure totell an offender that they must discharge an impossible sentence before their debt is expunged. Reducing all of this to a less etherealplane, the point is that so long as [the offender] fails to pay the victim surcharge he remains indebted and criminalised. He has not paidthe price for his crime and remains unrequited because he is poor.

It is worth noting in my view that when it comes to the sentence ofdiscretionary fines the law avoids this consequence by prohibiting fines from being used to punish offenders who cannot pay.

In the caseof victim surcharges, imposing unpayable monetary penalties is a legislatively accepted consequence.” [116] Simply put, even if a poor offender is given time to pay, and can ultimately scrabble together enough to discharge their obligationafter receiving extension, or extension upon extension, it remains true that because they are poor, the entire time they are endeavouring topay the victim surcharge they remain “accountable,” unable to discharge their debt to society, making reconciliation impossible. [117] In my view, even leaving aside the disproportionate economic impact I describe above, all of these things confirm the adversedistinction that the victim surcharge regime has upon characteristically poor, mentally disordered offenders, relative to most otheroffenders. [118] I make this finding notwithstanding the arguments that the Crown advanced in an effort to pare down the list of things I shouldconsider.

I have already recounted the Crown submission that I should focus solely on

section 737, while disregarding theseenforcement mechanisms. In addition, the Crown urged that I should not be prognosticating about future inability to pay based on thecurrent financial situation of individuals, in light of the decision in R. v. Wu 2003 SCC 73. The Crown also argued that many of theconcerns I have just recounted are speculative, there being no evidence that Ms. Madeley, or any other disabled person, has experiencedthe stress of an unpaid victim surcharge. [119] With respect to the decision in R. v. Wu, supra, however, I remain of the view that it is irrelevant. R. v.

Wu, supra, like thedecision in R. v. Lavigne 2007 SCC 10 where similar dictum can be found, involved attempts by trial judges to apply statutorilyinappropriate strategies to avoid imposing fixed fines.

In effect, given the statutory provisions that governed, the inability of an offenderto pay in the foreseeable future was legally immaterial to the sentence the judges were required to impose. [120] In the case of a Charter challenge like the one before me that is based on the implications that a fine provision has, it is simplynot possible to answer the constitutional question without evaluating the long-term implications that the provision has for the Charterclaimant.

The judge seized of the issue is required to examine whether the claimant has proved a Charter violation on the balance ofprobabilities, and cannot, in my view, refuse to consider the implications of a perpetual or protracted inability to pay that is moreprobably than not going to arise, given the personal circumstances of the offender.

Indeed, in New Brunswick (Minister of Health & Community Services) v G.(J.), (1999), (SCC), 26 C.R. (5th) 203 at para 51 (S.C.C.) [New Brunswick], the Courtconfirmed that “remedies can be ordered in the anticipation of future Charter violations, where there is proof of “probable futureharm.”[6] [121] This is particularly true where a group claim, such as the

section 15 claim I am now considering, is being brought. Given that Iam to consider the impact of the victim surcharge on the group of mentally disabled persons, it approaches the farthest reaches of artificeto proceed on the basis that the group as a whole may well come into sufficient employment or money to be able to discharge their debtwithout delay. [122] I am of the same view about the contention that the stress and sense of exclusion I have identified are merely speculative. It istrue that there is no evidence before me of anyone, including Ms. Madeley, claiming to have such experiences, but no evidence is needed.

[123] Dealing first with Ms. Madeley, to have me wait until she has experienced the stress and displacement that non-payment bringswould undermine the utility in even bringing a challenge. The purpose of the Charter is to prevent unconstitutional mischief before itarises, not to wait for it to have already occurred before responding. [124] In my view, the argument that it is speculative and unrealistic to believe that offenders will experience the pressure of non-payment is also misconceived. The whole point of the enforcement mechanisms is to make non-payment unpleasant enough to inspirepayment.

Eliciting the assistance of collection agencies, withholding licences or permits, and postponing eligibility for recordsuspensions are meant to apply pressure. So, too, is the threat of jail for nonpayment. I cannot see how it is speculative or unrealistic toassume that these measures achieve their intended purpose. [125] The same holds true, in my view, with the legal messaging that accompanies the non-payment of the victim surcharge that Iaddress in the long paragraph from R. v. Michael, supra, quoted above.

The impact of a lingering, unsatisfied sentence may appear to beabstract, but it is no more abstract than the concept of denunciation that forms a central principle of sentencing. As has often been said,the criminal law is a system of values. It trades on the messages it sends about moral fault, justice, and restoration. These messagesmatter not only to the theory of criminal law, they furnish much of the justification for punishment.

Of more immediate importance, theyare calculated to influence public perception about crime and criminal behaviour. [126] Consider the concept of restoration achieved through the promotion of responsibility in offenders identified in

section 718 of theCriminal Code. The concept is that by paying one’s debt to society, pro-social behaviour can be promoted through restoration. The flip-side is that by not paying one’s debt to society, restoration is premature. [127] The legal messages that accompany non-payment of the victim surcharge itself are unquestionably adverse. The victim surchargewas made universal in The Increasing Offender’s Accountability Act, for the expressed purpose of making victim’s accountable for theircrimes, by requiring them to contribute to the costs of attending to the victims of crime. The message this sends is clear.

If the victimsurcharge is paid, the offender has been held to account. If it is not paid they remain accountable. And those who remain accountableremain indebted to society for their offences, not yet fit for reintegration. [128] Legally, as with all messages sent by the criminal justice system, these messages are meant to be serious and real, not speculativeand trivial.

Reduced to its simplest, it cannot be correct that a court, charged with identifying the adverse effects of a law, is required toignore the very adverse exclusionary messages that the law is meant to deliver. [129] I am therefore persuaded that Ms. Madeley, and other mentally disabled individuals, are materially adversely affected by thevictim surcharge because of the poverty that is characteristic of the enumerated class of mentally disabled persons. This poverty makes itmore painful for many members of the class to pay the sums that are imposed than it is for most other offenders to pay.

It also makes itmore difficult for the victim surcharge to be paid in a timely fashion, if at all. This poverty exposes mentally disabled persons toprolonged exposure to the adverse enforcement consequences of the victim surcharge, to the uncertainty that can accompany outstandingcriminal obligations, and to the negative messaging that non-payment entails. Stage I of the

section 15 test is therefore satisfied. c. Stage 2 – Is the Victim Surcharge Discriminatory? i. The Appropriate Legal Test [130] The Stage 2 legal test, “Does the distinction create a disadvantage by perpetuating prejudice or stereotyping,” is an inquiry intowhether the adverse distinction identified at Stage 1 “has a discriminatory impact” (Withler, supra at para 34) or a “negative impact onthe claimant’s human dignity” (Law v.

Canada (Minister of Employment and Immigration) (SCC), [1999] 1 S.C.R.497, at para 41). [131] This discrimination inquiry is concerned ultimately, with whether the impugned law violates “the norm of substantive equality”:Withler, supra at para 2.

In my view that norm was best expressed by Justice Lebel in Quebec, supra, at para 140, when he noted that “itis unfair to limit an individual’s participation in society solely because the individual has one of [the] personal characteristics[‘enumerated in s.15(1) or analogous to them’].” [132] Unfortunately, while the goal of this legal test is clear, controversy remains about precisely how this Stage 2 discrimination

evaluation is to be undertaken. [ 133 ] It is universally agreed that the “analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation,” and “taking full account of the social, political, economic and historical factors concerning the group”: Withler , supra at paras 37, 39 . [ 134 ] The case law also yields a number of non-exclusive, non-mandatory factors that can be consulted to guide the determination. Four of these factors, the “ Law factors,” were articulated in Law , supra .

They include “pre-existing disadvantage,” the “correspondence” between the ground on which discrimination is claimed and the actual needs, capacity or circumstances of the claimant or the affected group,” whether “the impugned law has an ameliorative purpose or effect for certain members of society,” and “the nature and scope of the benefit or interest the claimant feels she has been denied”: Law , supra at para 88.

By considering these and other relevant contextual considerations when applying the relevant legal test, and by viewing matters from “the point of view of the reasonable person, in circumstances similar to those of the claimant,” discrimination can most profitably be identified: Law , supra at para 70. [ 135 ] Beyond this, there are two areas of controversy about how discrimination is to be tested that require comment.

The first relates to the role played by “prejudice” and “discrimination,” and the second, to the use that is to be made of legislative purpose when identifying discrimination. [ 136 ] To understand the first controversy about the role of “prejudice” and “stereotyping,” it is necessary to appreciate that these words are legal terms of art. In Quebec (A.G.) v.

A , supra , at para 326, Abella J. defined “‘Prejudice” [as] the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits of individuals or the groups of which they are a member.” Justice Lebel was in evident agreement, describing the prejudicial effect “of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society … based on one or more of the personal characteristics enumerated in s.15(1) or analogous to them”: Quebec , supra at paras 192-193. [ 137 ] Justice Abella described “stereotyping” as “a disadvantaging attitude, but one that attributes characteristics to members of a group regardless of their actual capacities”: Quebec , supra at para 326.

Justice Lebel adopted a similar definition of stereotyping that describes “inaccurate generalizations about the characteristics or attributes of members of a group that can usually be traced back to a time when social relations were based more overtly on contempt for the moral worth of the group”: Quebec, supra at para 202. [ 138 ] Prior to the decision in Quebec , supra , it seemed clear that either prejudice or stereotyping had to be found before a discrimination claim could succeed. In R. v. Withler , supra at para 54, the Court said: “In

summary, the theme underlying virtually all of the Court’s s.15 decisions is that the Court in the final analysis must ask whether, having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant’s situation, the impugned distinction discriminates by perpetuating the group’s disadvantage by stereotyping the group.” [ 139 ] In Quebec , supra , the majority opinion on the

section 15 standard, written by Justice Abella, held otherwise, that “prejudice” and “stereotyping” are relevant but not necessary conditions to a successful

section 15 challenge. [ 140 ] Justice Abella arrived at this position after expressing concern that both terms, “prejudice” and “stereotype,” reflect negative “attitudes.” This presents two problems. First,

section 15 catches unintentional effects-based discrimination regardless of intention or attitude. That being so, “prejudice” and “stereotype” cannot be the sole bases for a

section 15 violation. Second, Justice Abella expressed concern that to focus on attitudes may impose a largely unquantified burden on Charter complaints: Quebec , supra at para 328-330. [ 141 ] For Justice Abella, proof of prejudice and stereotyping can be helpful, even determinative, but the inquiry should be a flexible and contextual one about whether the impugned law violates the norm of substantive equality.

It will do so if the distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group: Quebec , supra at paras 325 – 327. [ 142 ] By contrast, in Quebec , supra , at para 204, after reviewing the history of

section 15 jurisprudence, Justice Lebel articulated a legal test that continued to call for proof of either prejudice or stereotyping. On the other hand, at para 180 while describing the law, Justice Lebel seemed less insistent:

“Thus, substantive equality is not denied solely because a disadvantage is imposed. Rather, it is denied by the imposition of adisadvantage that is unfair or objectionable, which is most often the case if the disadvantage perpetuates prejudice or stereotypes”(emphasis added). [143] Since Justice Abella was speaking for the majority when rehearsing the law of

section 15, and Justice Lebel is equivocal, Ipropose to evaluate Ms.

Madeley’s claim by examining both prejudice and stereotype, as well as by asking the more generic question ofwhether the distinction violates the norm by perpetuating arbitrary disadvantage. [144] The second disagreement relates to the use that is to be made when identifying discrimination, of the “purpose of the scheme.”Once again, the decision in Withler, supra, seemed clear that discrimination is to be evaluated by focusing “on the nature of the schemeand the appropriateness of the impugned distinction, having regard to the purpose of the scheme and the situation of the claimant,” (atpara 45, emphasis added).

However, in Quebec, supra Justice Abella held that, “[a]ssessment of the legislative purpose is an importantpart of the Charter analysis, but it is conducted under s.1 once the burden has shifte

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