R. v. Novielli, 2015 ONCJ 192

COURT FILE No.: Toronto DATE: 2015.04.13 Citation: R. v. Novielli , 2015 ONCJ 192 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — VITO NOVIELLI Before Justice Fergus ODonnell Reasons for Judgment Delivered on 13 April, 2015 Mr. Daniel DeSantis.............................................................................................. for the Crown Mr. Jordan Stone...................................................................... for the defendant, Vito Novielli ODonnell, J.: Overview 1 .

This case involves a light-fingered cashier responding inappropriately to family financial stresses, a recently increased victim surcharge eliminating judicial discretion in “sentencing”, a second year law student who argued capably that those recent changes are unconstitutional and very real issues about boundaries in the sometimes fractious relationship between the courts and Parliament. 2 . One of the most prominent parliamentarians in history spoke of democracy in the following terms: “ No one pretends that democracy is perfect or all-wise.

Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time.” [1] Democracy is, indeed, messy and, however true Winston Churchill’s observation was seven decades ago and six thousand kilometres away, it is at least as true seven decades later in the Canadian democratic context, where traditional British parliamentary democracy has been overlain by an entrenched constitution. 3 . When it works well, democracy is a thing of beauty, even imperfect as it will probably always be.

Ideally, no branch, the executive, the legislature or the judiciary, ever loses sight that each has been assigned a defined role beyond which they have no right to tread. 4 . History teaches, however, that even mature democracies like ours do not always work well. At times the executive has overstepped its proper role and mistaken the office of premier for that of potentate.

Perhaps the most notorious example of that in Canadian democratic history was the scandalous action of Quebec Premier Duplessis using liquor licensing regulatory powers to squash a bothersome Jehovah’s Witness. (The system’s checks and balances ultimately set things right when the courts vindicated Mr. Roncarelli’s rights, even in that pre- Charter era.) The legislative branch has at times descended into periods of political pettiness and partisanship, blind to the enduring value of evidence-based decision-making and of public-spirited compromise in pursuit of the collective good.

Legislatures have been known to rely on bogeymen to advance political agendas and secure votes: experience shows that imagined dangers, foreign or domestic, are popular tools at times, such as supposedly increasing threats from crime or a foreign invader supposedly waiting to burst over the frontier. At times, the courts have had to step in to bring constitutionally offensive legislation back in line.

This has been particularly so since the advent of the Charter of Rights in 1982, which dramatically re-defined the relationship among the executive, legislature and courts, allowing the courts a limited power to intervene in relation to both particular state actions and sweeping state conduct such as legislation. And, lastly, let it be said that courts have sometimes missed the mark, overstepping their rightful bounds from time to time. I think it can fairly be said that most of those mis-steps have been motivated by a desire to achieve a just outcome, although some have been more troubling in nature.

The broad availability of rights of appeal generally ensures that any such mis-steps are few and short-lived, although it would be folly to consider that a right of appeal can remedy all judicial error. 5 . A further check or balance among the three branches of government is to be found in the legislature’s right under the constitution, if it were ever so to choose, to insulate its legislation from Charter scrutiny. 6 . The statement of these broad principles is relatively simple.

Their application in any given context is greatly complicated by the fact that reasonable people may disagree at various stages of the analysis of any legal issue.

The Case 7 . Mr. Novielli is thirty-five years old. He was a long-term cashier at the LCBO when his father died, leaving behind him debts and dependents--Mr. Novielli’s mother and grandmother--who had only disability payments and old-age security payments respectively to pay for their upkeep. Mr. Novielli pleaded guilty to stealing a total of $777 from the LCBO over the course of four work-days. The investigation of him followed the firm’s discovery of discrepancies in the store’s takings, whereupon the loss- prevention department set up a camera feed on Mr.

Novielli’s cash register. (I am not at all sure why people steal from the LCBO. Given the apparent robustness of the company’s loss-prevention mechanisms it seems to me that stealing from them either as a shoplifter or as an employee is a bit foolhardy.) 8 . Mr. Novielli was dismissed from his position (more than a year after the fact, he is in arbitration to regain his job). He first appeared before me as a self-represented defendant whose case was lingering in the system. He was unemployed and unable to retain counsel.

He was unable to obtain representation through Legal Aid, presumably because the Crown was not seeking a jail sentence. He appeared to be inclined to resolve the charges from at least his first appearance before me, perhaps earlier. I told him to apply to one of Toronto’s two law schools to see if the student legal clinics there might be able to help him out. 9 . At the University of Toronto’s Downtown Legal Services, Mr. Novielli met Jordan Stone, a second-year student at the Faculty of Law. Mr.

Stone is a mere stripling, yet possessed of more poise on his feet than one might expect of someone of his vintage and presenting materials and argument of a quality that are very often not on offer from advocates of much greater experience than his. I was not the only person in the courtroom to comment favourably on the quality of Mr. Stone’s presentation. Mr. Novielli was very well-served by him. 10 . Mr. Stone pursued two lines of advocacy on Mr. Novielli’s behalf. First, he presented argument as to why Mr. Novielli should receive a conditional discharge.

Second, he argued that the October, 2013 changes to the victim surcharge were unconstitutional in that they offend the protection in s. 12 of the Charter against “cruel and unusual punishment”. 11 . I reached two conclusions in relation to Mr. Novielli’s case, one on the day of the submissions and another upon reserve. The first was that Mr. Novielli, despite having committed a breach of trust in the course of his defalcations, was entitled to a conditional discharge with a long period of probation and a significant amount of community service.

The second is that, whatever else may be said against them, the changes to the victim surcharge do not offend against the requirements of the constitution. 12 . I reach the second conclusion with some circumspection, for two reasons. The first is that some of the scholarship in the judgments delivered on this issue reaching a result contrary to my own reflects a breadth and depth of knowledge that I could not aspire to match.

The second is that I believe that the vast majority of those judges who have found the victim surcharge to be unconstitutional have done so in a genuine quest for a just result for the defendants before them. All that being said, however, I believe, for the reasons set out below, that the conclusion that the surcharge is constitutionally infirm is built on a sandy foundation and that the remedy granted is itself draconian and inapt. The Appropriate Sentence 13 . Before I address the victim surcharge issue, I should say something about the sentence imposed. Mr.

Novielli pleaded guilty on open submissions, with the understanding that the Crown would seek a suspended sentence and the defence could ask for a discharge. Given the nature of the offences and the breach of trust element, the Crown’s position was entirely within the range of appropriate sentences. 14 . On the date set for sentencing and argument of the constitutional issue, Mr. Stone set out Mr. Novielli’s background in some detail. Mr. Novielli had been a long-term employee of the LCBO. He was thirty-five years old. He had no previous criminal record.

When his father died, leaving behind him the aforementioned debts and dependents, Mr. Novielli had to step in to help support his mother and his grandmother, each of whom had very limited income. Having run out of other options to finance this extended family’s basic needs, Mr. Novielli resorted to the thefts to which he pleaded guilty. He was dismissed from his job when the thefts were uncovered and had not been able to find new employment. He had been forced to move in with his brother in Bradford due to his lack of income. During the sentencing process, it came out that the young Mr.

Novielli was scheduled for a heart bypass operation in the near future. 15 . Mr. Stone detailed Mr. Novielli’s involvement as a volunteer in the community. Unlike many offenders, Mr. Novielli’s interest in community service did not start after he was charged. In fact, Mr. Novielli had been deeply involved as a volunteer at the Boys and Girls Clubs since not long after he had been a boy himself, a period of about a decade. He had done 110 hours of community service since the charges were laid. 16 .

Having entered into the sentencing proceedings strongly advocating for a suspended sentence in light of the breach of trust, Mr. DeSantis, with the fairness that is characteristic of him and having heard the details of Mr. Novielli’s background and circumstances during the sentencing, stood up and said that he no longer disputed that a discharge would be appropriate for Mr. Novielli. 17 . That being the case, I do not propose to dwell long on the fitness of sentence issue.

It is clear from s. 730 of the Criminal Code that a discharge can be applied where it would be in the defendant’s best interest and where it would not be contrary to the public interest (subject to a couple of specific exceptions). Other than the specific exceptions (offences with mandatory minimum sentences or with maximum sentences of fourteen years or more), there are no categories of offence for which a discharge is precluded, although a body of law has developed outlining various circumstances where a discharge might generally be less suitable than in other situations. 18 . I was satisfied that Mr.

Novielli’s thefts were acts of foolhardy desperation and that his assertion that the money was not spent on luxuries was genuine. Mr. Novielli struck me as an unpretentious and sincere person throughout his various appearances before me and I was satisfied that his offences were out of character. The true character of the man was to be found in the absence of any criminality for his entire life before these offences and in his selfless dedication to volunteer work with young people for over a decade.

As long as the terms of the probation order were sufficient to send a sufficient message of society’s disapprobation for Mr. Novielli’s offences, I had no concern that a discharge would be contrary to the public interest. 19 . It seems to me that when considering the suitability of discharges in 2015, judges might appropriately tweak their analysis from some of the categories of the past. I say this for two reasons. The first is that information in 2015 is not what it was in 1960 or 1970 or 1980.

Computerization and information-sharing now mean that records of a person’s criminal history, as well as many lesser contacts with law enforcement, are likely to be immeasurably more widely available than ever before, whether to the public on the internet or to foreign agencies by means of post-“9/11” data-sharing agreements, at the same time that the availability of a

“pardon” (now a record suspension) has been constrained. The difference between a conviction and a discharge is now more acute than it has been in the past. The other consideration is that, sometimes for legitimate reasons and sometimes simply because it is possible, it seems to be much more common for employers and voluntary organizations to insist upon records checks. The potential for a criminal conviction to affect a much broader group of defendants is thus very real. 20 .

What the cases do not seem to consider in much, if any, detail is to what extent the terms of a conditional discharge might inform the analysis of whether a discharge rather than a suspended sentence with criminal conviction is the more appropriate outcome. It seems to me that this is a discussion worth having because the substance of the sentence might often serve more to modify an offender’s behaviour and to serve society’s interests than the long-term consequences of a criminal conviction. In this case, for example, the original Crown position (taken before Mr.

DeSantis’s involvement) was for a suspended sentence with a modest number of community service hours. It is fair to ask whether the sentence ultimately imposed, a conditional discharge with a much longer period of probation and many more community service hours than originally sought by the Crown is ultimately the more fit sentence and overall more responsive to the various objectives of sentencing set out in the Criminal Code . 21 .

There will undoubtedly remain many cases in which some aspect of the offence or characteristic of the offender will make a discharge “contrary to the public interest”, but it seems to me that some of the shackles of past analysis of when discharges are appropriate might well be loosened or shed without doing any harm at all to society and thereby enhancing many defendants’ potential for rehabilitation. The Constitutionality of the Victim Surcharge 22 . My review of the vigorous debate surrounding the victim surcharge leads me to address the following matters: a . The history of the victim surcharge. b .

The judiciary’s role in bringing about the most recent legislation. c . Is the surcharge a treatment, a punishment, a sentence? d . The test for “cruel and unusual”. e . Is the surcharge “cruel and unusual” or might the consequences for non-payment be more fruitful foci of constitutional attention? f . If the surcharge does violate s. 12 of the Charter , what is the appropriate remedy? I shall deal with each of these in turn. The History of the Victim Surcharge 23. The victim surcharge is found in s. 737 of the Criminal Code .

An understanding of the deeper history of the surcharge, i.e. before the recent changes, is essential for purposes of constitutional

interpretation. [2] The surcharge was created in 1988 to fund provincial victim assistance programmes. It called for a surcharge of fifteen per-cent on top of any fine ordered; if there was no fine the offender had to pay ten thousand dollars or an amount prescribed by regulation. By regulation, the maximum amount of the victim fine surcharge where no fine had been imposed was originally established as thirty-five dollars [3] and over time the “fixed” figures applicable when there was no underlying fine were placed in the

section itself. [4] In its form immediately before 24 October, 2013, the surcharge was still set as fifteen per-cent of any fine imposed. Where no fine was imposed, the surcharge was by then fifty dollars for any offence punished by

summary conviction and one hundred dollars for any offence punished by indictment, amounts that had not changed for many years. The judge had the discretion to reduce or waive the surcharge if requiring payment would cause “undue hardship” to the offender or the offender’s dependants. Although seldom done, the sentencing judge could also increase the surcharge. 24. As of 24 October, 2013 the victim surcharge was effectively doubled, to thirty per-cent of any fine imposed or, where no fine was imposed, to one hundred dollars for each charge prosecuted by

summary conviction or two hundred dollars for each charge prosecuted by indictment. The discretion to waive the surcharge was taken away from judges, but the discretion to increase it was left in place. 25. It bears noting that earlier versions of s. 737 specifically precluded an offender from “working off” a victim surcharge (unlike a fine) under any fine option programme established in each province. The new, “more draconian” some would say,

section revoked that exclusion and allowed an offender to pay off the victim surcharge under a fine option programme. 26 . It also bears noting that, for whatever reason, the government of Ontario has failed to operate a fine option programme despite that option being available to the government under the Criminal Code . Most provinces, including provinces without the financial heft of the country’s largest province, appear to have fine option programmes in place. 27 . The old and the new versions of

section 737 share a somewhat anomalous provision with respect to when the surcharge was payable. If the surcharge was a percentage of a fine, it was payable when the fine was payable (which was within the judge’s discretion). For reasons that are neither obvious, nor blatantly logical, however, a surcharge that was imposed as a fixed amount per charge (i.e. where there was no fine) is and was payable within a time prescribed by regulation established by each province.

It is not clear why judges would have discretion to fix the time for payment of a one hundred dollar fine, but not have initial discretion to fix a time for payment of the surcharge that was reflective of the defendant’s particular situation, especially when one considers that where a defendant is found guilty of several offences the amount of the surcharges could easily exceed the amount of many fines. 28 . In Ontario the Lieutenant Governor in Council has fixed thirty days as the time for payment of victim surcharges on

summary conviction offences and sixty days for payment of the surcharge on indictable offences. If the Lieutenant Governor in Council’s advisers are not too busy, updating this provision to respond to some of the practical challenges of the new victim surcharge reality might be a worthwhile focus of her attention. [5] 29 . The principle distinctions between the old and current versions of

section 737 of the Criminal Code, then, are the doubling of the surcharge and the removal of the judge’s “undue hardship” discretion. There has since been a torrent of litigation, most of it for some reason in this province, challenging the validity of the new

section 737 . Questions have been raised as to whether or not the surcharge is a “punishment”, whether or not it is “cruel and unusual” and whether or not various other judicial stratagems might, in sufficient cases, temper the effects of the new provision such as to import sufficient safeguards as to shield the

section from a finding of unconstitutionality. Among these stratagems were approaches such as very long times to pay and the imposition of nominal fines.

“I Have Seen The Enemy and He is Us” 30 . Discretion is an essential feature of any judicial system. That is because criminal cases are not one-size-fits-all widgets and complainants, defendants and witnesses are human beings, who come in all shapes, sizes, personalities, strengths, weaknesses and backgrounds. Tailor-made outcomes will generally be more just than outcomes unduly constrained by artificial and inflexible external rules. The problem is that the unconstrained use of discretion, judicial or otherwise, can lead to anarchy.

Typically, when any decision maker is given discretion, she is given that discretion within some set of parameters. As a general proposition, Parliament or the legislature gives judges or other decision makers a framework within which to apply their discretion and relies on the judge or decision maker to remain within bounds. Sometimes, however, that confidence is mis-placed. 31 .

I have referred earlier to the desirability of decision makers (the same is true for the executive, legislatures and judiciary), engaging in evidence-based decision making, since that sort of dispassionate intellectual process typically leads to the most sound outcomes. One obvious question in relation to the elimination of judicial discretion from the victim surcharge is whether or not there is any sound basis for it. As the title of this

section of my reasons telegraphs, the answer to that question is “yes”. The imposition of the victim surcharge by the judiciary is one area in which Parliament could reasonably conclude that judicial discretion had been mis-used on a wide scale. Indeed, in my opinion, any other conclusion would be insupportable. 32 . Another way of wording the title to this

section would be to adopt the language of Robbie Burns, who once opined, “Oh, what a gift the Lord would gi’e us, to see ourselves as others see us”. That admonition is as apposite for judges as it is for anyone else. There have, to my knowledge, been various studies of judicial application of the victim surcharge, or, perhaps more aptly, there have been various studies of extremely widespread judicial failure to apply the law as set out in s. 737 of the Criminal Code . 33 . Insofar as “deeds speak”, judges generally have never been fond of the victim surcharge.

There was early resistance by judges in Ontario because, initially, the province did not set up a dedicated account for the funds and they flowed into consolidated revenue, although how that fact relates to the “undue hardship” test is hard to fathom.

Likewise, the imposition of the surcharge appears to have been particularly low when a person was sentenced to imprisonment and when the disposition did not involve a fine, despite there being no apparent or general correlation between those circumstances and the statutory test. [6] If a government were looking for an evidence-based reason to legislate away judicial discretion, the victim surcharge would appear to be a promising environment. A 1992 study in British Columbia concluded that the surcharge was imposed in only ten percent of eligible cases.

Two years later a nation-wide study showed that surcharges were being imposed in only fifteen percent of eligible cases (and revenue collected in only 2.7 percent). [7] I do not believe it overstates the case to conclude that the victim surcharge provisions of the Criminal Code have effectively been the object of a wide-scale process of judicial nullification. 34 . In saying that, I am mindful of the reality of the criminal courts, in particular of the provincial court in which I and the authors of most of the other victim surcharge judgments to date serve.

I suspect that most citizens have very little genuine awareness of what happens in criminal courts, of the character, nature and demographics of its denizens. It has been said that defendants in criminal court can be categorized into “the mad, the sad and the bad”, which does handily categorize the reality of most criminal defendants. The truly evil offender is a relative rarity. The defendants described, for example, in Justice Paciocco’s decision in R. v. Michael and by Justice Schnall in R. v.

Flaro et al. [8] reflect many of the walking wounded of society who often, albeit not always, find themselves in conflict with the law as a result of historic abuse, addiction, poverty and/or mental health issues, often repeatedly so and also often reflecting the striking over-representation of aboriginal persons as criminal defendants. Many of the other offenders are one-time visitors to the courts, who learn from their experience and never re-offend.

By and large, the lower socio-economic classes appear to be over-represented in criminal court (and by “over-represented” I mean present in greater proportion than their numbers in society as opposed to represented by counsel, which is another great challenge for many defendants who are very poor but still not very poor enough to qualify for legal aid). Many of the victims are themselves poor and/or saddled by histories of abuse, addiction or mental health problems. Every day in provincial court is a searing reminder of how fortunate one is and of how trivial most of one’s worries really are. 35 .

It is against that reality that the comments of one politician around the time the victim surcharge debate began to heat up should be viewed.

As I recall, he asked rhetorically, “Who can’t afford a hundred dollars?” Quite apart from the obvious arithmetic of the amounts piling up well beyond a hundred dollars when there are multiple counts or counts proceeding by indictment (multiple residential break and enters being a straight-indictable offence commonly committed by addicts, for example), the obvious answer to that question is: “Come to “my” court any day and I’ll show you several people for whom “a hundred dollars” is a big deal”. 36 .

Given that context, it is with some circumspection that I have come to the conclusion that the present format of the victim surcharge, with judicial discretion removed, remains constitutionally valid, however regrettable the removal of that discretion may be since it does deprive judges of the ability to waive the surcharge in cases where waiver would be more just. I think that society would be better served if judges continued to have discretion over the victim surcharge, although I understand why that discretion was taken away.

The optimal outcome would be for judges to have the discretion and to apply that discretion much more judiciously than has hitherto been true. I do not think that the removal of discretion is overall a good idea, but I do not think that judges going out of bounds is a good idea either, however merciful and just their motivations may be. There is a large gap between legislation that may be perceived as “unwise” and legislation that is unconstitutional. 37 .

I am reminded of a scene in Robert Bolt’s play A Man For All Seasons , in which Sir Thomas More’s would-be son-in-law told More that he would cut down every law in England if that was what it took to get at the devil, to which More replied that the laws exist to protect everyone and nobody would be safe if they were struck down. The same is true if judges fail to recognize the distinction between a law that may have pointless or regrettable or bad consequences, or even a law that some say has petty or craven political motivations and a law that is unconstitutional.

Democracy does not always result in pleasing or even entirely rational or optimally “fair” outcomes, but overstepping democracy’s boundaries is a far, far bigger issue than any individual case or defendant. 38 . Judges are not entirely independent actors. We work within a legal framework and, unless that framework is morally repugnant along the lines of the judicial system of Nazi Germany, we are required, in our work, to follow our judicial conscience and leave our individual views and our personal conscience out of our decisions as much as that is humanly possible.

There is immeasurable value in judges bringing their life experience to the bench, but chaos ensues if judges fail to recognize that the legislature has a fairly broad right to be “wrong”. This is a point touched on by Justice Renee Pomerance in a paper relating to the passage of the Safe Streets and Communities Act [9] , words that I believe bear repeating at some length: I suggest that the notion of the judicial conscience is the key to understanding the judicial role and the resolution of personal conflict or dissonance.

Judges are empowered to act in accordance with unwritten constitutional principles when the judicial conscience is engaged;

where the law in question so violates fundamental norms that it is offensive to universally acknowledged ideals of human conduct. Tomy mind, that is the operative standard. The law may be thought to be unwise or undesirable or even, to some extent, unjust, but that isnot enough to justify a judicial departure from the rule of law. It is not enough that the law offend a judge’s personal conscience. Were itotherwise, we would each become like the third judge in California, who refused to apply law that he disagreed with. We would breedjudicial anarchy.

The judicial conscience will not always draw bright lines around what is and is not acceptable on a normative level. There is, more likely,a spectrum along which various laws can be plotted. At one end might be placed a law advocating genocide. Such a law is obviouslydeeply offensive to the norms of a civilized society. Further along the spectrum, one might find a law that advocates the killing of oneperson – a law advocating capital punishment.

Beyond that, one might see a law advocating a mandatory life sentence for a thirdindictable offence; and further beyond, a law that imposes a mandatory minimum sentence of one year for cultivation of 201 marijuanaplants. At some point along this spectrum, the judicial conscience will be engaged. Reasonable people might disagree about preciselywhere that point is. But it seems to me that, wherever it falls, it is somewhere other than the one year minimum for marijuana cultivation.

I have referenced the spectrum because, on a personal level, it helped me to understand the Safe Streets and Communities Act within itsbroader context. It helped me to understand that, while aspects of the new law may offend my personal conscience – I will not wish toplace a youthful first offender in jail for a year for marijuana cultivation – the law is not so offensive as to violate my judicial conscience.I have reconciled myself to that distinction. I have reconciled myself to the fact that, as a judge, I am bound to apply and uphold the ruleof law, “in all its complex majesty”.

I accept Sopinka J.’s statement in Rodriguez v. British Columbia (A.G.), (SCC),[1993] 3 S.C.R. 519, at p. 607 that: “[t]he principles of fundamental justice cannot be created for the occasion to reflect the court’sdislike or distaste of a particular statute”. I accept that we live in a healthy democracy, and that the words of Professor JeffreyGoldsworthy apply: In a healthy democratic society, cases of clear and extreme injustice are rare; in most cases, whether or not a law violates some basicright is open to reasonable arguments on both sides.

The whole point of having a democracy is that in these debatable cases the opinionof the majority rather than of an unelected élite is supposed to prevail. In closing, it has been said that “fate leads the willing and dragsalong the reluctant” While admittedly reluctant to apply the new law, I am nonetheless willing to do so, in accordance with my role as a trial judge. I do notresile from the concerns expressed in this paper, but I acknowledge the binding effect of the new statutory law and the dictates of myjudicial role.

Those dictates will serve as my guide in the days following the enactment of the Safe Streets and Communities Act, whenthe proposed changes to the sentencing process become a new and dramatic reality.[10] As I said earlier, I would much rather have the discretion I once had in relation to the victim surcharge. I wish that Parliament had nottaken that discretion away. I wish that judges had not created the environment that both caused and allowed Parliament to abolish thediscretion.

There are cases where I now must impose the surcharge where in the past a diligent, sincere and honest application of thewaiver discretion would have led me to waive it. There are, indeed, many, many cases where I must now impose the surcharge incircumstances I disagree with, but wherever the line lies between Parliamentary freedom to act and constitutional repugnance, I cannot,without first grossly diluting the language of

section 12 of the Charter, the highest law in the land, and, without second, in my opinion,fiddling with the rule of law, find the victim surcharge amendments to be “cruel and unusual”. Is The Surcharge A Punishment, A Treatment, A Sentence?

Section 12 of the Charter of Rights and Freedoms states: “Everyone has the right not to be subjected to any cruel and unusualtreatment or punishment.” Several of the cases address the question of whether the victim surcharge is a “treatment” or a“punishment”. I do not propose to engage deeply in this inquiry because I am of the view that it is ultimately irrelevant whetherthe surcharge is a punishment or a treatment because it is definitely one or the other and I can conceive of no rational basis uponwhich the analysis should proceed differently based on the categorization. 40.

I suppose that in very general terms, the word “punishment” could theoretically encompass any negative consequence arising outof behaviour committed by a person who is at fault.

In the criminal context the very broad range of consequences for a finding ofguilt or conviction might include fines, jail, probation, orders keeping an offender for years from being near places where youngpeople gather, orders depriving a person of proceeds of criminal activity, orders depriving people of property that was honestlyacquired but used in committing criminal offences, firearms prohibition orders, orders requiring an offender to provide a sample ofhis or her DNA, restitution orders or victim surcharges.

It would be foolhardy, however, to construe every consequence flowingfrom a finding of guilt or conviction to be a punishment. I note that in R. v. Rodgers,[11] the Supreme Court of Canada, inaddressing the meaning of punishment in relation to s. 11 of the Charter and the DNA order requirement after conviction, madethe following comments: 63 This does not mean, however, that “punishment” under ss. 11(

h) and 11(

i) necessarily encompasses every potential consequence ofbeing convicted of a criminal offence, whether that consequence occurs at the time of sentencing or not. A number of orders can bemade by a sentencing court, for example an order for forfeiture, a firearm prohibition, a driving prohibition, or an order for restitution. Itis beyond the purview of this appeal to determine whether or not any of these consequences constitutes a punishment.

As a general rule,it seems to me that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused maybe liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing. Inthis respect, the protection afforded by s. 11 must be contrasted with s. 12 of the Charter that protects against cruel and unusual“treatment” or punishment. For example, DNA sampling, ordered as a consequence of conviction, would undoubtedly constitute a

“treatment” and, if the physical method for obtaining a DNA sample were cruel and unusual, redress could be obtained under s. 12 . (emphasis added). 41 . In my opinion, whether or not the surcharge is a punishment (which I doubt) or a “sentence”(which I doubt very much), it is clearly a “treatment” at the hands of the state. Although some of the non-criminal decisions on

section 12 of the Charter seem to advocate for a restrictive

interpretation of the word “treatment”, i.e. to narrow the range of government conduct that would be subject to s. 12 analysis, I am of the view that the word “treatment” in a constitutional document regulating the relationship between citizen and state should be given a wide ambit, particularly so when the conduct to be constrained is “cruel and unusual” conduct. I should think that it is a hallmark of a democratic society that “cruel and unusual” conduct by the state ought to be constrained as vigorously as possible, whence the justification for a broad

interpretation of treatment. 42 . I reject the idea that the surcharge is a part of a sentence or sentencing. I am willing to jump wholeheartedly in with those who say that the precise categorization of the victim surcharge is superficially perplexing. It does seem, at first blush, to be neither fish nor fowl. Some of the cases, in addressing precisely what it is, have commented that fitting it into certain categories is like trying to fit a square peg in a round hole, which I think is entirely fair, if one does not look back to its origin.

The surcharge may be many things: is it a tax, a user-fee, a form of restitution, reparations, a component of sentence? Several of the cases have proceeded on the basis that the surcharge is part of sentence and have followed from there to conclude that it is a “mandatory minimum sentence” and thence to analyze it using the criteria applied to mandatory minimum sentences. Some of the cases have pointed out that the surcharge fails to satisfy some or many of the criteria for mandatory minimums.

It might, in my opinion, fairly be observed that the reason the surcharge fits so poorly within the analysis applied to mandatory minimum sentences is because it is not a sentence. 43 . I believe that it is a fundamental error to construe the victim surcharge as part of a “sentence” given its unique history and purpose. I do not think the victim surcharge fits comfortably into any pre-existing categorization because it is, what we would have called (in the “good old days” when lawyers loved to use Latin words to show how smart we were), “ sui generis ”, a thing to itself, something unique.

I would call the surcharge a user-fee or a form of general restitution. I would say that it has much more in common with a user-fee or restitution or reparations than it has with penalty, punishment or sentence. It recognizes that when offenders commit crimes they create consequences for their victims. Direct restitution addresses certain financial consequences that can fairly easily be identified, quantified and compensated for by payment of a case-specific sum directly to the victim.

However, the commission of the offence creates a real need for various other forms of generic victim assistance, which require the government to step in and which do not lend themselves to any form of direct offender-victim compensation. While these payments may not fit within the classical concept of individual restitution, they are consistent with the long-standing Anglo- Canadian notion that each crime is not only a crime against the individual victim, but also a crime against the sovereign or, latterly, against society, which is entitled to reparations for the costs incurred or to be made whole again.

These are costs that would otherwise have to be borne by all of society and which would not exist but for the offender’s conduct. They are expenses that are reasonable insofar as they help make the justice system work more efficiently and enable victims to navigate it with reduced stress and reduced uncertainty, stress and uncertainty being two of the burdens offenders impose upon their victims. It is entirely reasonable to apportion the costs of these services onto those people who have been found guilty of committing offences, whether they are given discharges, suspended sentences, fines or jail sentences.

Parliament has chosen a crude means of apportionment of these costs through the

summary conviction/indictable formula along with the percentage of any fine formula. (I do not mean to be critical by use of the word “crude”; I simply refer to the very basic structure for calculating the surcharge, a simplicity that strikes me as entirely inoffensive in constitutional terms.) There is nothing palpably irrational or offensive about that structure. It is a policy choice that strikes me as lying within Parliament’s broad capacity to legislate. If I wish to use the facilities in a national park, I might reasonably expect to pay for the costs inherent in maintaining that system.

It would be open to Parliament to fix fees based on the number of times I use the park, how long I plan to stay, whether I visit with a tent or a forty-foot motor-home, whether I am alone or am a party of sixteen people, whether I am a Canadian resident or a non-resident and so on. The surcharge strikes me as most closely comparable to that sort of scenario and, as long as constitutional principles are not engaged, the precise details of the fee structure are the business of the legislature and no business of the courts. [12] 44 .

I appreciate that there are various reasons why people might believe the surcharge is a punishment or part of a sentence. The most obvious is that the wording of section 737(1) applies the surcharge “in addition to any other punishment….” There is a tolerable, logical argument to the effect that that wording means Parliament thought of the surcharge as a punishment, but I do not think that is the end of the story. Does being in part a punishment also render the surcharge part of the sentence imposed on an offender? Not necessarily.

Most obviously, the words of s. 737 do not read “in addition to any other sentence ”. 45 . One might look to other provisions of the Criminal Code for guidance. Thus, s. 673 of the Code defines sentence as including an order under s. 737(3) as being within the meaning of a “sentence”. However s. 673 limits its

definitions to

Part XXI of the Code and the inclusion of s. 737(3) as a “sentence” appears to be purely for administrative purposes in order to grant a right of appeal for any increase in the victim surcharge as provided for by s. 737(3).

This type of administrative categorization is common in legislation; it is, for example, why the Code says sheep are “cattle” when anyone from north of Highway 9 would know they are not; it is simply convenient for the legislative draftsperson to use a compendious word, defined as having a specific meaning in the statute, rather than listing every beast of the farm individually in countless Code sections .

It is also noteworthy that neither the pre-24 October, 2013 version nor the current version of s. 673 included the original victim surcharge order (s. 737(1) as opposed to any enhanced surcharge within the definition of “sentence”. 46 .

For similar reasons, I do not believe that any material significance can be attributed to the fact that “fine” as defined in the Criminal Code (and most people would agree that a “fine” is a routine form of “punishment” or “sentence”) includes “a pecuniary penalty or other sum of money but does not include restitution.” This, again, strikes me as having no relevance other than as another manifestation of the draftsperson clustering items together for convenience so that other sections of the Code can be less cumbersome. The “cattle” example demonstrates this best.

The Code defines “cattle” as: “neat cattle of the bovine species by whatever technical or familiar name it is known, and includes any horse, mule, ass, pig, sheep or goat.” Now, if my brother-in-law were to ask me to go to the barn and feed the cattle and I went and fed the donkey, he would think even less of city folk than he does already. But to a legislative draftsperson, that definition makes sense because it means that every time the Criminal Code wishes to proscribe behaviour in relation to half a dozen types of farm animals, it has only to use the word “cattle”, rather than six words.

Likewise it is with the definition of “fine”. With the expanded definition of “fine” in s. 716 of the Criminal Code , the

draftsperson can be more economical with words when he or she is trying to address payments of amounts owing in s. 734.8 or any other place in the Code that such miscellaneous amounts must be mentioned: rather than using thirteen words he or she can use one and the definition

section will handle the rest. 47 . The artificiality of placing too much reliance on the meaning of “fine” is also demonstrated by the following example.

Section 737 requires a surcharge of thirty per cent on top of any fine. If the surcharge itself is a “fine” and thus a form of sentence, then there would have to be a surcharge of thirty per-cent on top of the surcharge, and then a thirty per-cent surcharge on top of that, and then, and then, ad infinitum . 48 . I also find myself in disagreement with the conclusion by Justice Paciocco in R. v. Michael [13] to the effect that anything that supplements a fine must necessarily be a fine and since fines are “a paradigmatic example of punishment”, the thirty per-cent top- up must necessarily be a punishment also.

This, to me, fails to consider the history and purpose of the victim surcharge. 49 . In stark contrast with my colleague Justice Paciocco again, I am also respectfully inclined to place little or no weight on what Parliamentarians may have said about the purpose of the surcharge in recent years. There are reasons why courts are cautious in using the utterances of politicians to define the meaning or purpose of legislation. Which utterances are the courts to take as the product of reasoned thought and which should be dismissed as petty sniping at opponents or pandering to the ill-informed and vindictive?

Placing too much weight on parliamentary utterances strikes me as fraught with risk. This is particularly so when the roots and root purpose of this particular legislation are much, much deeper than anything that has been uttered in Parliament in the last few years.

The history of this legislation does not reflect any punitive character at all; as I have set out above, fairly seen the legislation reflects the fact that until the late 1980s the federal government made transfer payments to the provinces to pay for victim services, that the federal government decided to terminate those transfers and that the quid pro quo for the cancellation of those transfer payments was that the provinces would be made whole through the victim surcharge scheme, the fruits of which would flow directly to the provinces.

With a clear history like that, along with the history of judicial nullification of the surcharge over the intervening decades, it strikes me as imprudent to place weight on much else. It is in this context that I have reviewed the analysis in Michael, supra, as to whether or not the surcharge fits the criteria set out by the Supreme Court of Canada in Rodgers, supra, for a “punishment” and presumably thence to form part of a sentence.

It is fair to say, as Justice Paciocco does, that the surcharge arguably strikes some chords in relation to the Rodgers analysis, but it seems to me that the fatal flaw in that reasoning is that, in looking to purpose, Michael looks only at the purpose in 2013 that removed the discretion over the surcharge and not at the original and root purpose in 1988 that created the surcharge in the first place. I think it is also fair to observe that many items may share common features with many other items without being that other item.

I could describe many features of the Azores and cumulatively leave my reader thinking, with great confidence, that I was writing of Ireland, but although the Azores have many, many characteristics in common with Ireland, they are not, in fact, Ireland. I could describe many characteristics of a locomotive, shared in common with a motor vehicle, but that does not mean that one is the other. 50 . The distinction between assessing purpose in 2013 and assessing purpose in 1988 is a highly material distinction.

If we were to drill down deeply enough, I suspect very few judges would give a moment’s constitutional oversight to the victim surcharge but for the fact that the judge’s discretion has been removed. Indeed, for twenty-five years, every one of them during the Charter era, nobody, defendants, lawyers or judges, other than perhaps a fellow named Mr. Crowell in Nova Scotia, seems to have found the surcharge to be offensive to constitutional norms until the discretion was taken away. The surcharge was a fund-raising tool when it was created and it remains thus twenty-seven years later.

The amendments of 2013, which took away judicial discretion, responded to the fact that judges had undermined the purpose for years, but those amendments were logically incapable of changing the true nature of the surcharge, no matter how many political soapboxes it may have been convenient to climb on in order to trumpet a “tough on crime” agenda. 51 . There are various lesser reasons why one might have additional reason to doubt that the surcharge is in any way a punishment or sentence. The first is that the user-fee analysis seems to fit much more smoothly than any other characterization.

Another is that, from the outset, Parliament has treated the surcharge differently than it treats fines when it comes to the issue of ability to pay. Section 734(2) of the Criminal Code provides that before a court can impose a fine (i.e. as part of a sentencing), it must consider the person’s ability to pay. [14] The victim surcharge as originally drafted, however, had its own unique test for requiring a person to pay, i.e. “undue hardship” to an offender or his or her family. 52 . There are other peculiarities if the surcharge is part of the “sentence”.

While I accept entirely the benighted state of very many of this court’s offenders and while I derived great comfort from the discretion I enjoyed in waiving the surcharge in appropriate cases, [15] it beggars belief that eighty-five percent or more of offenders are unable to pay the surcharge.

The Code explicitly requires that it be imposed “in addition to” any other punishment, which means either that it is not part of sentence or that the principles of proportionality and totality have been displaced by it, decisions that would be within Parliament’s discretion, but which are an odd fit for a “sentence” which the Code says must respect proportionality. If judges have been failing wholesale to impose the surcharge, does that mean that a huge percentage of sentences imposed have been unfit?

If the surcharge is part of the sentence, then presumably the judicial power to increase the surcharge ought to have been engaged more often. A judge acting judicially would have been bound, if the surcharge was a “sentence”, to consider in every case whether to increase the surcharge under s. 737(3), presumably applying at a minimum the criteria in s. 718.2 of the Criminal Code . I made an inquiry about undue hardship in every sentencing before the amendment and I know that I have increased the surcharge once, perhaps twice, in almost six years as a judge.

I did not do so because I considered it to be part of a “sentence”, but solely on the basis of s. 737(3). Those judges who assert today that the surcharge is part of a sentence might ask why s. 737(3) suffered such judicial neglect over the decades if it has always been an integral part of sentencing. 53 . The nature of the surcharge was addressed in R. v.

Crowell, [16] a few years after the surcharge took effect, in which it was argued that the surcharge was an unlawful tax because it was a tax imposed by the federal government to fund provincial programmes for victims of crime, thus running afoul of the division of powers between the two levels of government as set out in sections 92 and 96 of the original British North America Act . The Court of Appeal for Nova Scotia held that the surcharge was not a tax (although if it was a tax it would appear to be within federal legislative authority).

The Court of Appeal viewed the surcharge through a sentencing lens (an approach with which I respectfully disagree). I believe, however, that the characterization of the surcharge’s unique nature and purpose as set out by the Nova Scotia Court of Appeal are enlightening: The victim fine surcharge is a new concept in restitution: general rather than specific restitution made by an offender not to his or her own victim but to victims of crime generally by creating a fund to provide them with certain services.

It is a statutorily imposed deterrent with perhaps a secondary relevance to reformation; its role as a deterrent is incidental to its fund - raising purpose.

It is not surprising that the victim fine surcharge should be regarded with suspicion by judges in criminal courts; it is an intrusion into theart of sentencing unrelated to the peculiar requirements for the protection of the public with respect to the characteristics of the individualoffender before the court. Thus it is a limitation on both the discretion and the independence of the sentencing judge.

Nevertheless, it is a limitation within the criminal law-making powers of Parliament, which fetters judicial discretion in sentencing invarious ways, for example, by prescribing both minimum and maximum sentences and by such mandatory provisions as firearmsprohibitions. In some respects the victim fine surcharge is not dissimilar to the court costs which were routinely added to fines untilrelatively recently. ……..

The victim fine surcharge is therefore neither a true tax nor a true fine, but rather a unique penalty in the nature of a general kind ofrestitution….. (emphasis added) I do not believe that the amendments to the Criminal Code after Crowell, which created an inclusive definition of “fine” alter the force ofCrowell’s reasoning, given the purely administrative or short-hand character I perceive as the rationale for that definition. The Test For “Cruel and Unusual” Treatment or Punishment 54.

The terminology “cruel and unusual punishment” has a long pedigree, finding expression three centuries before the Charter ofRights in the English Bill of Rights of 1688, endorsed in the eighth amendment to the constitution of the United States of Americain 1791 and finding more recent expression in Canada’s own Bill of Rights. As I have said before, both the wording of

section 12and the stark infrequency with which mandatory minimums have been found to violate the Charter speak to the exacting standard aclaimant would have to meet to make out a violation. The language of the cases reinforces that standard. For example, in R. v.Ferguson,[17] the Supreme Court of Canada used the following language to set a bar that has consistently been set very high in s.12 jurisprudence: [14] The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grosslydisproportionate: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045.

As this Court has repeatedly held, to be considered grosslydisproportionate, the sentence must be more than merely excessive. The sentence must be “so excessive as to outrage standards ofdecency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable”… (emphasis added) 55. The great majority of “cruel and unusual punishment” cases appear, unsurprisingly, to relate to mandatory minimum sentences.

Itis unsurprising, perhaps, that the cases analyzing the victim surcharge have defaulted to the same analysis set out in thosesentencing cases, although some cases have conceded that it does tend to be a rather awkward fit. Of course, it is axiomatic thatwhere one ends up often depends very much on where one begins.

If one starts by trying, inescapably awkwardly so, to assess theconstitutionality of the surcharge through the skewed lens of a mandatory minimum sentence analysis, it is less surprising that onemight come up with the outcome that has followed in several of the decisions so far, although nothing can overcome the surprisethat results from the conclusion that the stringent tests set out in Ferguson in the preceding paragraph come close to being satisfiedby the victim surcharge.

Although the surcharge may appear to have some “sentencing” flavour to it, I think it might be moreproductive to step back and to consider the somewhat different lines of questioning summarized by Professor Tarnopolsky (as hethen was) in a 1978 article, as summarized by Lamer, J. (as he then was), in R. v. Smith,[18] the case dealing with the mandatoryseven year sentence for importing controlled substances. At paragraph 45, Lamer, J. noted: 45. These criteria are very usefully synthesized in an

article by Professor Tarnopolsky, as he then was, "Just Deserts or Cruel andUnusual Treatment or Punishment? Where Do We Look for Guidance?" (1978), 10 Ottawa L. Rev. 1. In a

summary he wrote, at pp.32-33: Without specific attribution as to the court that suggested it, it would be useful to consider the various specific tests that have beensuggested: a. Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim? b. Is it unnecessary because there are adequate alternatives? c. Is it unacceptable to a large segment of the population?

d. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? e. Is it arbitrarily imposed? f. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? g. Is it in accord with public standards of decency or propriety? h. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? i. Is it unusually severe and hence degrading to human dignity and worth? 56 .

In Nur, supra, the Court of Appeal for Ontario said that one must first consider the impact of the “mandatory minimum sentence” on the offender before the court. However, even if the mandatory sentence did not violate s. 12 under that analysis, the court would have to proceed to see if the sentence would violate s. 12 when applied to a reasonably hypothetical scenario.

The Court of Appeal outlined the relevant considerations for assessing a mandatory minimum sentence as follows: [78] A number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals: see Smith , at p. 1073; Goltz , at paras. 25-27; and Morrisey , at paras. 27-28.

The factors identified in the case law are: • the gravity of the offence; • the personal characteristics of the offender; • t he particular circumstances of the case; • the actual effect of the punishment on the individual; • the penological goals and sentencing principles reflected in the challenged minimum; • the existence of valid effective alternatives to the mandatory minimum; and • a comparison of punishments imposed for other similar crimes. 57 .

Nur makes it clear that there is no particular weighting to the listed criteria, although it would seem self-evident that the gravity of the offence must play a particularly strong role. Be that as it may, the victim surcharge is a most awkward fit in this analysis. I would go so far as to say that the victim surcharge fits so poorly in this analytical framework that it is inescapable that it does not belong within it.

Rather than being a “sentence” for a particular offence, the surcharge applies a consequence to every single offence, from shoplifting to pre-meditated murder, with only three differentiations: (1) was a fine imposed, failing which: (2) did the Crown proceed by

summary conviction or, (3) did the Crown proceed by indictment? It could not have escaped Parliament’s attention that to do so would make the characteristics of the offender and of the offence and of the particular conduct largely irrelevant, except insofar as the Crown usually, but not always, proceeds by indictment on more serious cases. I address below the “ actual effect of the punishment on the individual”, which I construe to be, in real world, non-speculative terms, minimal. If this were a sentence it would be self-evident that the only penological goals engaged by a levy of this nature are seen in s. 718(

e) and (718(f), namely reparation of harm to the community and promoting a sense of responsibility.

If this were a sentence, it would have required Parliament to ignore the “fundamental principle” of sentencing that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” If the surcharge is a part of a “sentence”, Parliament must have been asleep at the switch, not just recently but also in the 1980s, because how can it be proportionate (a requirement for any “sentence”) for a person convicted of first degree murder to be exposed to the same surcharge as a person convicted of a five-thousand dollar fraud?

As for valid effective alternatives, they would lie in requiring the public at large to absorb the cost of victim services, which sounds more like a legislative choice than a judicial prerogative and which would, again if this is a part of “sentence” conflict with the goals of s. 718(

e) and s. 718(

f) of the sentencing purposes set out in the Criminal Code . The final factor, a comparison of punishments imposed for similar crimes, again serves to demonstrate the very, very awkward fit of mandatory minimum sentence s. 12 analysis to the victim surcharge. There are no similar crimes because it is every crime. 58 . If one resorts, instead, to the more general language of the compendium of considerations compiled by Professor Tarnopolsky, the fit is significantly less awkward and the answers strike me as very clear: a . Does the ‘punishment’ go beyond what is necessary to achieve a valid penal objective?

No, it imposes a modest cost on offenders whose offences imposed costs on society to serve the needs of victims. b . Is it unnecessary because there are adequate alternatives? The alternatives (paying the costs out of general tax revenue)

would penalize the law abiding and free the offender from paying for what he has wrought. c . Is it unacceptable to a large segment of the population? This is another way of asking if the surcharge would “outrage standards of decency”. “Outrage” is not a wallflower of a word. It possesses no feeble meaning or understated significance. It seems to me an outrage against common English usage to contend that the victim surcharge outrages standards of decency. d . Is it incapable of application by reasonable or ascertainable standards?

No, the standards are as clear as they could be: a percentage of any fine or a fixed amount. Nothing could be better defined than that. e . Is it arbitrarily imposed? No. It applies to all offenders for all offences. It is entirely predictable. f . Does it lack any social value? No, it reflects at least two principles that the Criminal Code has long recognized as valid aims: reparation and a sense of responsibility. It aims to assist victims of crime in the difficult journey they must endure as they are dragged through the criminal justice system, mostly as objects of benign neglect. g .

Is it in accord with public standards of decency or propriety? This is largely a reiteration of “c” above. I do not believe that public propriety would take offence at a “user pay” policy. h . Does it shock general conscience? The same answer applies. i . Is it degrading to human dignity? It is only by sheer speculation that one could conclude that the imposition of a reasonably modest monetary penalty that will never be enforced unless the offender has the actual ability to pay would degrade human dignity.

The era of the debtor’s prison and the workhouse are tiny specks in society’s rear-view mirror and the victim surcharge does not resurrect them. 59 . Whether one considers it acceptable or not to assess the constitutional validity of the surcharge through the same analysis as a “mandatory minimum sentence”, the language of the Court of Appeal for Ontario in R. v. Nur, [19] is highly relevant to either approach: [71] The stringent gross disproportionality standard is justified on two grounds. First, s. 12 , like other constitutional protections, sets a minimum standard for legislation.

Section 12 fixes the outer boundary of Parliament’s authority over sentencing in criminal matters: see Smith , at pp. 1107-08, per McIntyre J., dissenting.

Section 12 is not intended to constitutionalize any particular penological policy or theory, or to prohibit any legislation that the court may see as unreasonable or falling short of a best practices standard. Properly restrained judicial constitutional review accepts the primary law-making responsibility of legislatures by acknowledging the wide ambit of legislative choices available to elected officials. [72] Second, the stringency of the gross disproportionality standard is justified by the nature of sentencing in the criminal law.

The fixing of an appropriate penalty, or more usually an appropriate range of penalties, is far from a science. Different punishments can be justified using various theories of punishment. Thus, a punishment regime that emphasizes utilitarian concerns will in many cases impose a very different sentence than would a regime emphasizing a “just desserts” model of sentencing. Neither theory enjoys a constitutional status : see Morris J. Fish, “An Eye for an Eye: Proportionality as a Moral Principle of Punishment” (2008) 28 Oxford J. Legal Stud. 57. [73]

Part XXIII of the Criminal Code describes the fundamental purpose of sentencing in Canadian criminal law and identifies the operative principles of sentencing. While both utilitarian and “just desserts” considerations are evident in the various sentencing principles identified in

Part XXIII, the overall aim of

Part XXIII is to impose a sentence that is tailored to both the offence and the offender. Individualized sentencing through the exercise of judicial discretion sounds the keynote of

Part XXIII. [74]

Part XXIII does not, however, describe a constitutional standard. In the same way that

Part XXIII reflects Parliament’s authority over and responsibility for penal policy, specific statutory provisions that depart from the generally applicable approach to sentencing in

Part XXIII reflect that same authority and responsibility. Mandatory minimums that limit judicial discretion on sentencing are as much a reflection of sentencing policy as are the statutory provisions that create broad sentencing discretion. The gross disproportionality standard recognizes that Parliament is free to set sentencing policy, even a policy that restricts the individualized approach to sentencing in

Part XXIII, so long as the policy does not impose sentences that are so excessive as to be grossly disproportionate: Ferguson , at para. 54 ; and Goltz , at pp. 501-03 (emphasis added) 60 . As I have already said in different words, it seems to me that the specific Nur analysis for mandatory minimum sentences fits the victim surcharge like a poorly tailored suit.

Quite apart from that, the question arises of whether or not the factors considered in the cases realistically satisfy a “stringent” test for treatment that is “abhorrent”, “grossly disproportionate”, “more than merely excessive” and “outraging standards of decency”. I shall consider that question next. What Makes The Surcharge “Cruel And Unusual”? 61 . The relationship between the legislatures and the courts in Canada is largely defined in the Charter of Rights .

To define when courts can intervene to supplant the will of the people as expressed by their elected representatives, the drafters of the Charter necessarily used words. Words have meaning. The operative words in

section 12 of the Charter are “cruel and unusual”. I suspect that the average person could go through many months or years or perhaps their entire life without personally witnessing or experiencing “cruelty”. That reality alone is significant in the analysis. Any inclination to dilute the meaning of the words chosen by the drafters of the Charter effectively redefines the balance between parliamentary and judicial power, and would be undemocratic and unconstitutional. “Cruel” is not synonymous with “petty” or “overbroad” or “rigid” or “ill-considered” or “mean”.

As I have said before, judges have to be careful not to allow their own personal views of the desirability of legislation to influence their

interpretation of constitutional standards. Judges have to be careful not to allow speculation to creep into their thinking and the cases strike me as rife with speculation: the offender will never be able to repay; the offender will never

overcome his addiction; the offender’s self-preservation instinct will be overcome by the debt and he will deny himself his own basic needs rather than ignore the outstanding surcharge; the offender will be subject to psychological stress because of the imagined “force” of a fallacious fear of imprisonment in default of payment. However well-intentioned these judicial fears may be, they strike me as over-reaching when considering the real-life impact of the legislation and Parliament’s power to make laws subject only to specific constitutional limits.

I have looked far and wide to see the evidentiary basis for these conclusions, which include psychological conclusions ill-suited to judicial notice and sociological conclusions that are prone to high degrees of subjectivity. It also appears to me that the factual record upon which these findings of unconstitutionality have been made has been sorely lacking in relation to the precise legal, practical or administrative consequences that are visited upon those who fail to pay the surcharge.

This is important because it is the person alleging a breach who must prove it and the “proof” in the cases I have read seems rather thin. 62 .

It bears noting that between the Supreme Court of Canada’s decision a few years after the Charter took effect overturning the seven year mandatory minimum prison sentence for importing controlled substances and the Court of Appeal for Ontario’s decision overturning the three year mandatory minimum prison sentence for possession of a loaded restricted or prohibited firearm [20] , a period of more than a quarter century of vigorous Charter litigation, neither of those two appellate courts struck down a single mandatory minimum sentence for a violation of

section 12 of the Charter. When one looks at the issue through that filter or “reality check”, I think it is impossible to conclude that it is “cruel and unusual” to require offenders who by their offences create the need for victim services to fund some part of that need, however straightened those offenders’ circumstances may be. Put otherwise, I am of the view that the decisions finding the recent victim surcharge amendments to be cruel and unusual punishment grossly dilute and contort both the ordinary meaning and the constitutional meaning of those words. 63 .

A number of concerns have been raised to demonstrate the supposedly cruel and unusual nature of the victim surcharge. [21] Perhaps the greatest of these is the threat of incarceration if the surcharge is not paid. With all due respect to those who consider this to be a legitimate concern, there is a greater likelihood that the Toronto Maple Leafs will win the Stanley Cup or that I will be selected in the NBA draft than that a penurious street addict will be imprisoned for failure to pay his victim surcharge.

No matter how many words are written on the issue of the threat of incarceration for the addict’s failure to pay, the simple answer is this: nobody goes to jail except for wilful refusal to pay (and realistically probably precious few of them even). The Shaun Michaels of this world going to jail for failure to pay is not a “reasonable hypothetical”, it is a virtual impossibility. 64 . Canadian criminal law is somewhat inconsistent in its approach to the original infliction of financial consequences.

If a judge wishes to impose a fine that is within the judge’s discretion, she must consider the defendant’s ability to pay. If a judge is imposing a fine that involves a mandatory minimum (such as drink-driving offences or various excise-related offences, for example), ability to pay is irrelevant. If a judge is ordering a fine-in-lieu-of-forfeiture against a defendant who has put proceeds of crime beyond the reach of the state, ability to pay is not a legitimate factor for the judge to consider. Until 23 October, 2013 if a judge was imposing the victim surcharge, she had to consider “undue hardship”.

From 24 October, 2013 onwards, hardship has been irrelevant. [22] 65 . No matter how a defendant became indebted to the state, however, when it comes time to pay the piper, the rules are clear: no person who is genuinely incapable of paying a financial penalty will go to jail. [23] The Criminal Code provides a mechanism for those who are unable to pay a fine to work it off through a fine-option programme, which the Code authorizes and which most of the provincial or territorial governments have put in place (albeit not Ontario).

Fine option programmes were not an available option for the victim surcharge until the most recent iteration of s. 737 . In that aspect, the new s. 737 is more accommodating to an offender than the old, except where provincial governments have failed to create fine option programmes as Parliament allows. [24] 66 . Where a person wilfully refuses to pay a fine, the Criminal Code has a mechanism to create consistency and to treat prince and pauper alike: using the provincial minimum wage as the baseline, every eight hours worth of unpaid fines leads to a day in jail in default. [25] 67 .

The bottom line, however, is that the spectre of the impoverished, mentally ill substance abuser being jailed for failing to pay the surcharge has no place in the debate over the constitutionality of the surcharge. 68 . What, then, of the related concern that is sometimes voiced about the offender’s perception of consequences such as imprisonment? I think there are two responses to this.

The first is that where there is no likelihood of an impecunious offender going to jail for non-payment, it is out of bounds for a court to assess the constitutionality of a law based on some hypothetical offender’s presumed ignorance of that reality. The fear of imprisonment in those circumstances is so out of touch with reality as to be delusional.

If hypothetically (and there is no record I know about of this happening), debt collectors were to use the false spectre of imprisonment as a debt collection tool, that conduct would not make the law unconstitutional, it would make the debt collectors’ methods odious and probably criminal in the form of extortionate conduct. If a small subset of offenders actually believes for whatever reason that there may be jail for non-payment (a possibility given the number of mentally ill offenders), that blatant misapprehension of reality is still not a reason to characterize the surcharge as a s. 12 violation. 69 .

The second response is as follows. Just as legislative decisions should be evidence-based, so should judicial ones. The spectre of defendants experiencing stress because of victim surcharges hanging over their heads is entirely speculative (and even if such stress existed, it would have to be so powerful as to be “cruel and unusual”). I do not have any greater insight into a penurious offender’s thought processes than any other judge has, but I very much doubt that any significant part (or more likely any part) of their day is spent worrying about unpaid fines or surcharges. 70 .

It has also been posited in some of the cases that a penurious offender is faced with the choice of feeding himself or herself or paying off the surcharge. Since incarceration for non-payment depends on wilful refusal to pay, which necessarily entails the ability to pay after one’s own subsistence has been taken care of, the offender is faced with no such choice. The law has no such expectation of him.

The very notion is again entirely speculative and I would be willing to wager that if objective data were obtained on the point, the number of people going hungry in order to pay for their victim surcharge would probably be zero and would certainly be statistically irrelevant. There is, sadly, a much greater likelihood that this court’s impoverished offenders would be foregoing food in favour of paying for controlled substances rather than foregoing food in order to pay off their victim surcharges. 71 .

Another of the objections raised in relation to the victim surcharge is that it has the potential to delay an offender’s eligibility for a “record suspension”, formerly known as a pardon. That is because the waiting period to apply for a record suspension does not begin to run until all fines, fees, etc. have been paid.

I can certainly see that this effect might be characterized as an inconvenience, perhaps even a significant inconvenience for some offenders, but in the absence of a compelling record about the frequency of impoverished, etc. offenders applying for record suspensions from which one might actually distil a non-speculative measure of

the likely impact of the victim surcharge, this supposed prejudice strikes me as a complete non-starter. I also note that the current fee to apply for a record suspension is $631 and that is on top of the various other fees that must be paid in advance, such as criminal record checks, fingerprint fees, local record checks, etc., which are themselves not cheap. 72 . I am also inclined to think that quite apart from this line of thinking being highly speculative, reliance on this conjectural consequence to strike down the imposition of the victim surcharge tends to put the cart before the horse.

It seems to me to be an unjustified and unnecessarily overbroad step to hold that the surcharge is unconstitutional because of certain possible consequences, when the focus ought to be on whether or not the imposition of those consequences for non-payment is a violation of

section 12 of the Charter, if those consequences ever actually ensue . The question, for a future case, should be whether or not denying access to record suspensions until a fixed number of years after all fines, surcharges, etc. have been paid is a cruel and unusual treatment, i.e. whether or not s. 4(1) of the Criminal Records Act is constitutionally infirm, rather than the argument that the original imposition of the surcharge violates s. 12. 73 .

I am of the view that the next concern raised that supposedly contributes to the “cruel and unusual” nature of the current victim surcharge suffers from the same infirmities as the record suspension issue. The argument to which I refer is that there is potential for a person to be refused various licences or to have licences suspended for non-payment of financial penalties.

Section 734.5 of the Criminal Code provides: 734.5 If an offender is in default of payment of a fine, (

a) where the

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