2016 QCCA 1907, 2016 QCCA 1907

Boudreault c. R. 2016 QCCA 1907 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006031-155 (500-01-092720-132, 500-01-092722-138, 500-01-088112-138, 500-01-109969-144, 500-01-092721-130, 500-01-085146-139, 500-01-092723-136, 500-01-109968-146) DATE: November 28, 2016 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. ALEX BOUDREAULT APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT * [ 1 ] The appellant appeals from a judgment rendered September 23, 2015, by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Jean-Pierre Boyer), sentencing him to 36 months of imprisonment and a victim surcharge of $1,400. [ 2 ] For the reasons of Justice Mainville, with which Justice Schrager concurs in his reasons, THE COURT: [ 3 ] DISMISSES the appeal. [ 4 ] For her part, Chief Justice Duval Hesler, in dissent, would have granted the appeal in part to declare unconstitutional s. 737 of the Criminal Code , as it is currently drafted, that is to say, without the former subparagraph 5 which has now been eliminated, and would have overturned the order regarding the victim surcharge imposed at sentencing.

NICOLE DUVAL HESLER, C.J.Q. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. Mtre Yves Gratton Aide juridique de Montréal For appellant Mtre Robert Benoît Directeur des poursuites criminelles et pénales Mtre Éric Dufour Direction des affaires juridiques et législatives Bernard Roy (Justice-Québec) For respondent Date of hearing: June 3, 2016

REASONS OF DUVAL HESLER, C.J.Q. [1] The appellant appeals from a sentence of 36 months of imprisonment and a victim surcharge of $1,400 rendered September 23, 2015 by the Court of Quebec. [1] This same judgment rejected the appellant’s argument that the victim surcharge provided for at s. 737 of the Criminal Code violates s. 12 of the Canadian Charter of Rights and Freedoms . [2] This appeal takes place in the midst of a two-pronged jurisprudential controversy: the first prong concerns the characterisation of the victim surcharge, the second the determination of its constitutionality. [3] On April 5, 2016, this Court rendered a decision addressing the first prong of the controversy. [2] Writing for the Court, Justice Vauclair clearly determined that the victim surcharge constitutes a minimum sentence. [4] This appeal concerns the constitutional argument. [ 5 ] The victim surcharge has been part of the penal landscape for nearly 30 years.

In October 2013, its imposition became mandatory. The appellant argues that the withdrawal of the judicial discretion to exempt an offender from paying the victim surcharge is unconstitutional, because that withdrawal opens the door to violations of s. 12 of the Charter , that is to say the imposition of grossly disproportionate sentences. [ 6 ] The s. 12 analysis requires not only an analysis of the case at bar, but also an analysis of reasonable hypothetical circumstances. Since the victim surcharge applies to all offences in the Criminal Code , the range of hypothetical circumstances is particularly broad.

FACTS & PROCEEDINGS [ 7 ] The facts are simple and uncontested. [ 8 ] On September 23, 2013, the accused pleaded guilty to four

summary offences related to various failures to respect court probation orders rendered between June and November 2012. [ 9 ] Four months later, he pleaded guilty to seven charges of breaking and entering into a dwelling, one charge of attempted breaking and entering, one charge of theft, one charge of assault with a weapon, and one charge of possession of a prohibited firearm. All of these offenses were committed between August 2012 and March 2013. [ 10 ] A pre-sentence report was produced at the end of March 2014.

Among other things, this report mentioned the possibility that the appellant would reoffend, a possibility that materialized in August 2014 when the appellant was arrested for new offences. On September 16, 2014, he pleaded guilty to two charges of breach of a recognizance, as well as three charges of breaking and entering a dwelling, and three charges of conspiracy. [ 11 ] On January 9, 2015, the appellant, through his lawyer, announced his intention to challenge the constitutionality of the victim surcharge. [ 12 ] One week later, the Supreme Court rendered its decision in R. v.

Nur . [3] For the first time since the 1988 decision in Smith , [4] the Supreme Court declared a provision unconstitutional for infringing s. 12 of the Charter .

THE JUDGMENT ON APPEAL [ 13 ] After having reviewed the offences to which the appellant had pleaded guilty, as well as the motives that led him to commit the offences, the trial judge noted that the appellant had committed many breaking and entering offences, “[TRANSLATION] during a period in which he was unemployed, homeless, and was consuming a large amount of marijuana .” The judge was of the opinion that these crimes had been committed by the accused, “ in order to feed himself and to satisfy his drug addiction .” [ 14 ] The trial judge adopted the joint submission of the parties for a total sentence of 36 months, from which he subtracted the time the appellant had already spent in detention, to arrive at a sentence of 16.5 months of incarceration. [ 15 ] Before turning to the breakdown of the sentence, the trial judge considered the parties’ submissions regarding the constitutionality of s. 737 Cr.C .

Among other things, he took notice of their admission that the victim surcharge is an integral part of the sentence. [ 16 ] He also highlighted that the victim surcharge is now applied automatically, without regard to the personal circumstances of the offender, and that the court’s only discretionary powers are to increase the amount of the victim surcharge ( s. 737(3) Cr.C . ) and to extend the time allowed to pay it ( s. 734.4 Cr.C. ). [5] Other than the percentage automatically applied to fines, the surcharge amounts are $100 for each offence punishable by

summary conviction and $200 for each offence punishable by indictment.

[ 17 ] The trial judge undertook a two-part analysis of the applicable law. First, he considered the facts particular to the appellant. He held that the number and gravity of the offences with which the appellant had been charged justified the 36-month sentence suggested by the parties.

While recognizing the appellant’s limited earning power, he brought attention to the availability of several means of softening the impact of the victim surcharge, including granting an extension of time for payment, the possibility of performing compensatory work, and the possibility of converting the amount due into days of prison time.

He closed his observations with the following comment: [43] [TRANSLATION] If the accused finds the total amount he must pay as a victim surcharge to be excessive, he has only himself to blame, given the number of offences he has committed; this does not make a minimum surcharge of $1,400.00 cruel and unusual punishment. [ 18 ] The trial judge then rejected the hypothetical circumstances raised by the appellant.

In his view, the example of a person accused of 56 charges of being illegally at large could not be considered a reasonable hypothetical circumstance because, in his mind, the accused’s financial capacity was irrelevant to the analysis.

He also rejected the hypothetical of an accused who benefits from unconditional discharge, basing himself on the argument that the accused here did not have the standing necessary to raise a hypothetical inapplicable to his case. [ 19 ] As such, the trial judge rejected the constitutional argument. [ 20 ] Nevertheless, the majority of the offences having been committed prior to the amendment of s. 737 Cr.C . , he exercised the discretion recognized prior to these amendments to exempt the accused from paying the victim surcharge with respect to all of the charges to which the appellant had pleaded guilty, other than those committed after the amendments. [ 21 ] Had it not been for this exercise of discretion, now withdrawn from trial judges, the applicable victim surcharge would have been $4,600 had all charges been prosecuted by indictment.

As prosecuted, the victim surcharge would have totaled $4,000. ISSUES [ 22 ] In my opinion, the issues on appeal are as follows: - Did the trial judge err in law by failing to evaluate the impact of the victim surcharge on the sentencing principles of proportionality and individualization? - Did the trial judge err in law by rejecting the reasonable hypothetical circumstances raised by the appellant? ANALYSIS The submissions of the parties [ 23 ] The appellant submits that the victim surcharge is an integral component of the sentence and, as such, must respect the principles of sentencing.

Being of the opinion that the victim surcharge constitutes a minimum sentence, he criticizes the trial judge for not having considered this aspect of the question. [ 24 ] Underscoring that he will be incarcerated for a long period time and that he has no stable income, he predicts that it will be impossible for him to pay the victim surcharge when he is released from prison. (Truth be told, the 45 day deadline for payment has already run out. [6] ) As such, he will have no choice but to undergo an additional 17 days of detention or to complete roughly three weeks of community work.

As already mentioned, this aspect of his sentence would have been more severe had the trial judge not exercised his discretion to reduce the victim surcharge as he did. [ 25 ] The appellant further specified that an extension of time to pay would have the effect of imposing a debt upon him for several years.

As a result, his sentence would be neither proportional – given that it would exceed the joint submission – nor sufficiently individualized. [ 26 ] He alleges that the real impact of the sentence, understood as a whole, is thus grossly disproportionate in his case, given that in his opinion the detention ordered was such as to satisfy the penal objectives of s. 718 Cr.C . [ 27 ] The Attorney General of Quebec submits that the amount of the victim surcharge imposed upon the appellant is not disproportionate in light of the numerous offences the appellant committed.

She draws the attention of the Court to various means of softening the immediate impact of the victim surcharge, all highlighted by the trial judge. She also argues that it is not for the courts to question the wisdom of the legislators’ choice to restrict the judicial discretion formerly provided in the Criminal Code . [ 28 ] For her part, the Attorney General of Canada limited her observations to the impact of the victim surcharge on discharge. [ 29 ] I propose to grant the appeal and to declare s. 737 Cr.C . unconstitutional. [ 30 ] Here is why. Applicable Law

The standard of review [ 31 ] It is trite law that appeal courts must show deference to trial judges with respect to sentencing. [7] Three types of errors justify intervention: errors of principle that have an impact on the sentence, [8] and sentences which are “demonstrably unfit” [9] or “clearly unreasonable.” [10] [ 32 ] Even so, the application of the Charter to the facts of a case is always a question of law.

While the factual conclusions of the trial judge merit deference, the decision rendered is subject to review on the standard of correctness. [11] The victim surcharge [ 33 ] The victim surcharge was added to the Criminal Code in 1988. [12] It seeks to increase offender accountability by imposing a fine used to finance provincial and territorial victim support initiatives. [13] When introduced, the victim surcharge was subject to judicial discretion to exempt an offender who could demonstrate that its imposition would cause undue hardship. [14] This discretion no longer exists. [ 34 ] The respondent has produced evidence intended to demonstrate that prior to the withdrawal of this power, exemptions had become the rule rather than the exception in some jurisdictions. [15] [ 35 ] From time to time, [16] Parliament has adjusted the means of calculating and paying the victim surcharge, most recently through the Increasing Offenders' Accountability for Victims Act (the I.O.A.V.A. ) , which came into force October 24, 2013. [17] This law ushered in several changes. [ 36 ] First, the I.O.A.V.A. doubled the amounts payable.

As already mentioned, in addition to any other punishment imposed, an offender must now pay as a victim surcharge (in French “suramende compensatoire”) 30% of the fine imposed for the offence or, if no fine is imposed, $100 for each offence punishable by

summary conviction or $200 for every offence punishable by indictment. [18] [ 37 ] Second, the I.O.A.V.A. modified the available methods for paying the victim surcharge.

The law preserves the possibility of extending the time limit by which the fine must be paid, [19] and introduces the option for an offender to pay his or her debt through work credits earned through provincial programs. [20] [ 38 ] In Quebec, the conversion rates for compensatory work are provided at s. 336 of the Code of Penal Procedure . [21] By way of example, an offender who performs such work will be credited $10 an hour towards the first $500 of debt and $20 an hour towards the subsequent $5,000.

In the appellant’s case, this would equate to 50 hours of work at the first rate, and 45 hours of work at the second rate, for a total of 95 hours. [ 39 ] The I.O.A.V.A. retained the sanctions provided for failure to pay the victim surcharge: refusal to issue certain permits [22] or, if refusal would be unjustified in the circumstances, the issuance of a warrant of committal. [23] The resulting imprisonment must be served consecutively to any other sentence. [ 40 ] It bears noting that since the Supreme Court rendered its 2003 decision in Wu , an offender may not be imprisoned if his or her inability to pay stems from poverty. [24] [ 41 ] The most controversial aspect of the I.O.A.V.A. , however, is the withdrawal of judicial discretion to exempt offenders from paying the victim surcharge.

This is a question of constitutionality, not a question of the wisdom or opportuneness of the victim surcharge. [ 42 ] Indeed, prior to amendment, the following paragraph, now repealed, was part of s. 737 Cr.C . :

(5) Le tribunal peut ordonner qu’aucune suramende compensatoire ne soit infligée aux termes du paragraphe (1), si le contrevenant en fait la demande et lui démontre que cela lui causerait — ou causerait aux personnes à sa charge — un préjudice injustifié .

(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1) . [ 43 ] The respondents attribute the repeal of this judicial discretion to concerns raised by the practice, present in only some jurisdictions and not in Quebec, of exempting from paying the victim surcharge “almost any” accused who so requested. [ 44 ] The repeal of this judicial discretion has inspired a true jurisprudential controversy regarding the constitutionality of s. 737 Cr.C .

Those who argue that the provision is unconstitutional advance that the I.O.A.V.A. does not respect the sentencing principles of proportionality and individualisation, contrary to the rights guaranteed at ss. 7 , 12 and 15 of the Charter . [25] For many, it amounts to the criminalization of indigence, despite the decision in Wu , mentioned above at paragraph 40. I would like to emphasize again, however, that only s. 12 is at issue in the case at bar.

Section 12 of the Charter [ 45 ]

Section 12 of the Charter provides protection against cruel and unusual treatment or punishment. The bar is set high: only punishment that is disproportionate to the point of being abhorrent or intolerable, incompatible with human dignity, [26] justifies a declaration of inoperability. [27] In applying s. 12, the Supreme Court has only invalidated three minimum sentences. [28]

[ 46 ] The s. 12 analysis is contextual: the court must take into account a spectrum of factors, none of which is determinant.

In Smith , Justice Lamer, as he then was, outlined a first list of relevant factors: [29] - the gravity of the offence; - the personal characteristics of the offender; and - the particular circumstances of the case. [ 47 ] In Goltz , Justice Gonthier added other factors to this list, notably: [30] - the real effect of the punishment on the individual; - the pursuit of valid penal purposes; - the existence of valid alternatives; - recognized sentencing principles; and - a comparison with punishments imposed for other crimes in the same jurisdiction. [ 48 ] In the recent decision Nur , Chief Justice McLachlin, in the context of minimum sentences, adopted a slightly different analysis: [31] [46] To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps.

First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.

If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter . [ 49 ] The Chief Justice applied this same approach in the even more recent decision Lloyd . [32] [ 50 ] Following this analysis, the court must first consider the case of the offender. [33] If the sentence is not grossly disproportionate in the circumstances of the offender , the court must then decide if the provision would be grossly disproportionate with respect to reasonable hypothetical circumstances. [34] [ 51 ] That is to say that the second stage is not necessarily required.

But there is more. [ 52 ] The viability of a hypothetical situation is evaluated in light of judicial experience and common sense. [35] Hypotheticals should be neither far-fetched nor remotely imaginable, [36] thus excluding, among others, “ the most innocent and sympathetic case imaginable”. [37] [ 53 ] The Supreme Court recently clarified what constitutes a reasonable hypothetical circumstance in the context of analyzing a mandatory minimum sentence: [38] [57] Unfortunately, the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated.

With respect, this overcomplicates the matter. The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12. The terminology of “reasonable hypothetical” may be helpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases . At its core, the process is simply an application of well established principles of legal and constitutional

interpretation. [Emphasis added] Recent Supreme Court Judgments [ 54 ] The two most recent Supreme Court decisions in this area, R. v. Nur and R. v. Lloyd , which I have already mentioned, are similar in many ways. [ 55 ] In both cases, the offenders conceded that the applicable minimum sentence was not grossly disproportionate in their personal circumstances, but argued that the sentence could be so in reasonably foreseeable circumstances. In both cases, a majority of the judges declared the minimum sentences unconstitutional. [ 56 ] Chief Justice McLachlin authored the majority reasons in both decisions.

Justice Moldaver authored the dissenting reasons in Nur , accompanied by justices Rothstein and Wagner. In Lloyd , justices Wagner, Gascon and Brown opposed the reasoning of the majority. R. v. Nur [ 57 ] The challenged provision in Nur was s. 95(2) Cr.C . This provision prohibits possession of a loaded prohibited firearm, an offence punishable by a minimum sentence of three years on indictment and one year on

summary conviction. The majority held that the provision violated s. 12 of the Charter and could not be justified under s. 1 .

[ 58 ] Nur is the first case in which the Supreme Court considered the constitutionality of a minimum sentence in the context of a hybrid offence. [39] The distinction is important for our file, because the victim surcharge applies to all offences in the Criminal Code and, in the case of hybrid offences, must be evaluated with an eye to both regimes available to the prosecution. [ 59 ] Chief Justice McLachlin, writing for the majority, held that an unconstitutional law, the application of which is determined on a case-by-case basis by prosecutors, is incompatible with the legislator’s responsibility to enact constitutional laws and punishments. [40] Relying on the prosecution’s ability to elect to proceed by

summary conviction in order to avoid a disproportionate sentence, as the dissenting justices advocated, would risk delegating “the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grossly disproportionate sentence hanging over an accused’s head.” [41] [ 60 ] For the majority, this risk was of great importance in the case of minimum sentences.

In obiter , Chief Justice McLachlin described the constitutional difficulties that arise with the imposition of minimum sentences, bringing a nuance to the jurisprudential adage that minimum sentences are not, in and of themselves, cruel and unusual. [42] She wrote: [44] Mandatory minimum sentences, by their very nature , have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.

They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing . [Emphasis added] R. v.

Lloyd [ 61 ] In Lloyd , the Chief Justice went even further in criticizing minimum sentences: [43] [35] As I have already said, in light of Nur , the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.

If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences. [Emphasis added] [ 62 ] This observation seems particularly relevant in the case before us, because the provision in question, I repeat, applies to all the offences provided for in the Criminal Code . [ 63 ] In Lloyd , the Court considered s. 5(3)(a)(i)(

D) of the Controlled Drugs and Substances Act ( C.D.S.A. ). [44] This provision provides for a minimum sentence of one year of imprisonment where the offender: - (1) is convicted of trafficking, or possession for the purpose of trafficking, any quantity of a

Schedule I substance (such as cocaine, heroin or methamphetamine), or three kilograms or more of a

Schedule II substance (such as marijuana); and - (2) has already been convicted, within the previous ten years, of any offence provided for under

Part I of the C.D.S.A. , other than simple possession. [ 64 ] In declaring this provision unconstitutional, the majority underscored that most Canadians would be shocked to find that a drug addict who shared a small quantity of drugs with a friend would be sentenced to a year of imprisonment because he or she had previously been convicted of trafficking, a single time, nine years earlier after having shared marijuana at a social gathering.

The decisions of the Court of Appeal [ 65 ] Here, I digress briefly to respond to the following question: did the trial judge err in law by failing to draw a conclusion with respect to the characterisation of the victim surcharge as a minimum sentence? [ 66 ] With respect, I believe he did. [ 67 ] The trial judge is presumed to know the law [45] and, taken alone, the insufficiency of his or her reasons is not normally a means of appeal.

To invoke this means on appeal, the appellant must establish not only flaws in the judgment, but also that the flaws impair the right to appeal, because it is not possible for this Court to examine the correctness of the first instance decision. [46] [ 68 ] Here, the trial judge ignored an important jurisprudential controversy and a recent decision of the Supreme Court that went to the heart of the matter with which he was seized. [ 69 ] I add, however, that the omission here does not preclude an analysis of the correctness of the decision.

Indeed, this Court’s decision in Cloud [47] settles several questions that allow for a meaningful analysis on appeal, despite the paucity of the reasons given at trial. [ 70 ] In Cloud , despite the fact that the characterisation of the victim surcharge was at the heart of the matter, the constitutionality of s. 737 Cr.C . was neither raised in first instance [48] nor before the Court of Appeal [49] . [ 71 ] Judge Healy’s decision in first instance characterised the victim surcharge as a minimum sentence. [50] On appeal, Justice

Vauclair, writing for the court, confirmed this characterisation:[51] [55] [TRANSLATION] The surcharge is a unique measure, which is neither a fine nor restitution in the sense of s. 738 Cr.C. I agreewith the Court of Appeal for Nova Scotia which concluded that the surcharge is unique, but closer to a general restitution measure.[29] [56] In short, I see no reason why the surcharge should be neither a fine nor restitution, but rather a pecuniary sanction, an original,stand-alone measure.

Despite the fact that the legislature clearly decided that it should, in many ways, be administered like a fine, thisdoes not change its unique character and true nature. [57] That being said, the surcharge is found in the part of the Criminal Code dealing with the determination of sentences and there isno reason to believe that it is not part of sentencing. It is not simply an indirect consequence of the sentence like a “factor linked to thepersonal characteristics of the defendant”,[30] but rather an element entirely separate from each sentence.

Moreover, the judge had totake the surcharge into account long before the 1996 reforms to

Part XXIII of the Criminal Code with respect to sentencing, and longbefore the 2013 changes that made the surcharge mandatory.[31] [29] R. v. Crowell (1992), (NS CA), 76 C.C.C. (3d) 413, 420. [30] R. v. Pham, 2013 SCC 15 , [2013] 1 S.C.R. 739, par. 11. [31] R. v.

Crowell (1992), (NS CA), 76 C.C.C. (3d) 413, 420. [Emphasis added] [72] The Chaussé decision confirmed succinctly that the victim surcharge is equivalent to a minimum sentence:[52] [36] The provisions relating to the victim surcharge are equivalent to a minimum sentence without having any regarding to the delinquent’s ability to pay,[15] and which, due to a rigid timeline for payment, delays an inevitable decision with respect to theconsequences of failure to pay. [15] In fact, the dispositions relating to the victim surcharge presume that the offender is able to pay, since the Criminal Code provides,at s. 737(3), that the judge must take into account the offender’s ability to pay if he imposes a greater amount. […] The Rest of Canada [73] Elsewhere in Canada, we find judgments that resonate with the conclusions of our Court,[53] as well as a contrary line ofjurisprudence.

The latter would not qualify the victim surcharge as a sentence – much less a minimum sentence.[54] According to thisline of jurisprudence, the victim surcharge is nothing more than a mandatory auxiliary order. [74] As an example, I reproduce the words of Judge Glass, of the Superior Court of Ontario:[55] [29] I do not read a surcharge to be a fine. It is not in the form of a penalty. It flows from a conviction for a crime, but it is not asanction in its own right. Rather, it is quite simply what the Crown has described it to be, which is a sum of money established to be aconsequence of breaking the law.

That is different from a sanction because is it not in the same category as a fine, a tax, or a penalty.Rather, the surcharge is a sum of money that goes into a pool of resources to help victims of crime.

Just as there are requirements forproviding DNA samples upon conviction of offences and they are not sanctions, so do victim surcharges become requirements withoutbeing penalties. [Emphasis added] Application to the facts [75] In short, there is a live – and lively – jurisprudential controversy with respect to the characterisation of the victim surcharge.While the parties before us admit that the victim surcharge is a sentence, the question of whether it is a minimum sentence clearlyremains contested. [76] Following the s. 12 Charter analysis, I will now consider the case of the appellant.

Did the trial judge err in law in analysing the impact of the victim surcharge imposed upon the appellant onthe sentencing principles of proportionality and individualization?[56] [77] With due respect for the trial judge, I must answer this question in the affirmative. [78] Wherever possible, before determining the sentence for an ensemble of offences, a trial judge must determine the sentence foreach infraction.[57] Three recent decisions of this Court confirm the importance of this process.[58] In Desjardins, Justice Mainvilleindicated that this process is particularly crucial with respect to consecutive sentences – like the victim surcharge[59] – so as to avoidpotential distortions in the overall sentence.[60] In my view, this distortion occurred in the case at bar. [79] I have already reproduced, at paragraph [42] above, Section 737(5) Cr.C., that was repealed in October 2013.

It gave thesentencing judge the discretion to exempt the offender from the payment of the surcharge.

[ 80 ] Here, applying the offender’s right to benefit from lesser punishment, [61] the trial judge exercised his discretion not to impose the victim surcharge for the offences committed prior to the repeal of this discretionary power . [62] His decision to do so necessarily implies that he considered that imposing the surcharge would cause undue hardship to the appellant. This conclusion is troubling from a legal perspective. [ 81 ] Indeed, among the reasonable hypothetical circumstances in this case is clearly that of the appellant – had he committed the same offences a few months later.

In that scenario, the victim surcharge imposed would not have been $1,400 but at least $4,000.

Given that, since Nur , the s. 12 analysis requires entertaining the possibility that an offence could be pursued by indictment, the victim surcharge here could have risen to $4,600 . [ 82 ] In Cloud , Justice Vauclair writing for this Court explained that: [63] [73] [TRANSLATION] For the purposes of determining a proportional and individualised sentence, the judge must address this mandatory component of the sentence, in addition to the other penal obligations to which the law subjects him, such as the obligation provided at s. 718.2(3) Cr.C . [74] I readily admit that this legislative choice raises concerns that may be discussed in another context.

In rendering a sentence, a judge may not, however, impose fines that do not have and could not have coherent penal objectives, that is to say, fines which aim to neutralize the surcharge. [75] Thus, in determining a sentence, the judge must take into account the principles of totality and proportionality, including monetary sanctions, the surcharge or the equivalent in work credits.

Lawyers must do the same when they are reflecting on joint submissions. […] [Emphasis added] [ 83 ] I am in complete agreement with Justice Vauclair. [ 84 ] I will add, however, that the power of a judge to soften the other elements of the sentence is insufficient to guarantee the constitutionality of s. 737 Cr.C .

Even if a judge could legitimately reduce all the other elements of the sentence to their minimum – itself a far from certain [64] supposition – it remains that the imposition of the victim surcharge without regard to the financial capacity of the accused may in and of itself be cruel and unusual punishment. [ 85 ] In this case, I believe it is appropriate to revisit the application of s. 12 of the Charter to the appellant’s circumstances.

The personal characteristics of the offender [ 86 ] Without any intent to minimize the gravity of the offences committed by the appellant, the trial judge nonetheless recognized that the appellant committed his most serious crimes, breaking and entering, during a time when he was unemployed and homeless. [65] [ 87 ] The appellant has never had a steady source of income. His earning potential is very weak. He did not complete his secondary education.

He knows how to read but says he has “more trouble” writing. [66] Penal objectives [ 88 ] The trial judge opined that “[TRANSLATION] [i]f the accused finds the total amount of he must pay as a victim surcharge to be excessive, he has only himself to blame, given the high number of offences he has committed…” The Attorney General for Quebec echoed the sentiment of this statement, advancing that “crime should not pay” and underlining the important role that the victim surcharge plays in offender accountability and the importance of this objective – a recurrent theme in the parliamentary debates. [ 89 ] The appellant replies that the prison sentence proposed by the parties was sufficient to satisfy the penal objectives of s. 718 Cr.C .

Valid alternatives [ 90 ] According to the appellant, since the withdrawal of discretion not to impose the victim surcharge, the available alternatives are insufficient to guarantee constitutionality of the victim surcharge, the withdrawal of discretion having jeopardized the proportionality and individualization – in short, the fitness – of the sentence. [ 91 ] For her part, the Attorney General for Quebec points to the means of mitigating the impact of the victim surcharge on a given offender.

I now propose to consider these alternatives, as presented by the parties, in order to determine whether they constitute adequate remedial solutions. Extension of the time to pay [ 92 ] Pursuant to s. 734.3 Cr.C . , the court may extend the time by which the victim surcharge must be paid. A court that grants such an extension must, however, remain aware of the rule established by the Supreme Court in R. v.

Pham , [67] according to which a sentence may not be modified in order to avoid the consequences of a minimum sentence. [ 93 ] By way of example and analogy, in Wu , Justice Binnie approvingly mentioned a decision of this Court which allowed an offender to spread the payment of a $5,000 fine over three years, in the equivalent of $138 monthly payments. [68] [ 94 ] The only evidence before the trial judge with respect to the financial capacity of the appellant demonstrates that his sole

revenue to date is a $400 monthly government aid payment. In light of this evidence, it goes without saying that the appellant would be unable to make monthly payments of $138. Rather, his lawyer proposed that he make payments of $10, a proposal which also lacks realism. [ 95 ] The Collections Office technician explained that Collections’ payment plans are generally closer to the tune of $20-$50 per month.

Applying these scenarios – without presuming they are realistic for a person who lives on $400 a month – this is how the appellant would pay the victim surcharge over time: [69] Victim Surcharge Due Number of monthly payments at $10 Number of monthly payments at $20 Number of monthly payments at $50 Number of monthly payments at $140 $1,400 140 70 28 10 $4,000 400 200 80 29 $4,600 460 230 92 33 [ 96 ] I note that several judgments reference, and for good reason, the detrimental effects of the stress imposed long-term on an offender living with this sword of Damocles overhead. [70] Others argue that such effects are speculative and, in the absence of quasi- scientific evidence, reject the notion that the stress an indigent person suffers from such debt is prejudicial. [71] [ 97 ] In my opinion, to so hold disregards human nature.

Facing a daunting obstacle, many become discouraged. To ignore the psychological effect of imposing an insurmountable obstacle upon an individual is to jettison the principles of rehabilitation and social reintegration. Although no s. 15 arguments were made before us, I also note that characterising such arguments as shielding the indigent from the force of the law overlooks important aspects of substantive equality.

If both rich and poor are forbidden from stealing bread, it is fundamentally unjust for the poor to shoulder a punishment the effect of which is grossly disproportionate when compared to the punishment imposed on a person of greater means.

Compensatory work [ 98 ] Contrary to paying the victim surcharge in cash, paying the victim surcharge through compensatory work is subject to a two- year time limit. [72] [ 99 ] The applicable conversion rate, unchanged since 1995, is set by s. 336 of the Code of Penal Procedure ( C.P.P. ): For sums due between: one hour of compensatory work is equivalent to: $1 $ and $500: $501 and $5 000: $5 001 and $10 000: $10 001 and $15 000: $15 001 and $20 000: $20 001 and $25 000: $25 001 and $30 000: $30 001 and $35 000: $35 001 and $40 000: $40 001 and $45 000: $45 001 and $50 000: $50 001 and over: $10 $20 $40 $60 $80 $100 $120 $140 $160 $180 $200 $320 [ 100 ] Even assuming that the compensatory work alternative is always available, which does not seem to be the case, [73] the conversion here would be as follows: Victim Surcharge Due Hours Worked Weeks of Full-Time Work

$1,400 50 x $10/hr 45 x $20/hr 95 hours 2 $4,000 50 x $10/hr 175 x $20/hr 225 hours 5.5 $4,600 50 x $10/hr 205 x $20/hr 255 hours 6 [101] As did Justice Vauclair in Chaussé,[74] I note that the legislation and evidence are silent with respect to the possibility ofcompleting compensatory work in detention.

This evidence would have been relevant here, given that the appellant will have beendetained for the entire 45 days of the initial payment deadline and for two thirds of the two years allowed for completing such work,[75]rendering the alternative rather illusory in the case at bar. [102] Finally, if this ex post facto approach is a means of collecting a sum which cannot be collected, it cannot be a means ofrecalibrating a sentence that, at its origin, was disproportionate. In other words, this method of collection is not a legal remedy to theimposition of a sentence that is unjust and disproportionate.

Imprisonment [103]

Section 734.7 Cr.C. governs imprisonment for failure to pay the victim surcharge. The issuance of a warrant of committal isconditional upon the offender’s refusal, without a reasonable excuse, to either pay the fine or to complete the equivalent compensatorywork. Each day of imprisonment compensates $80 of the debt due.

For the appellant, paying off his debt in prison time would becalculated thus: Victime SurchargeDue Days in Prison $1,400 18$4,000 50$4,600 58 [104] Another precision is necessary: refusal to pay should not be confounded with failure to pay due to indigence[76] or failure to payin the absence of a compensatory work program.[77] This being the case, the spectre of debtors’ prison may be put aside – at least intheory. [105] Yet, in the Chaussé matter, this Court considered the hypothetical of an offender who does not have and will never have thefinancial means or capacity to work, and who may thus request immediate imprisonment in order to be freed of the victim surcharge.[78]Otherwise for such an offender imprisonment constitutes a second sword of Damocles:[79] [66] [TRANSLATION] Nevertheless, in the case of an indigent person, the appellant pleads that the methods of collecting the victimsurcharge can be perpetually recommenced.

This leaves me perplexed. It is no surprise that neither the Wu decision nor the legislation provides an answer. The Court has already expressed that, “it is not improbable that a committal warrant will never be issued.”[38] Allsigns point to the correctness of this assertion, but is there not some point at which the matter must be settled definitively? If not, how many times and how often is it acceptable for an indigent person to be forced to appear, possibly arrested and detained,[39] in order todetermine whether he or she still as a “reasonable excuse” not to pay or not to complete work credits?

Moreover, does s. 734.7 Cr.C.authorize the court to extend the delay for payment if the court determines that the delinquent has a reasonable excuse to refuse to pay orto earn work credits? In the Cook decision, the Superior Court concluded that the court exhausts its competence when it renders a committal order for default.[40] Would the result not be the same when it refuses to do so? [38] R. c. Deng, (QC CA), , par. 21 (C.A.Q.). [39] Among other things,

section 734.7(3) Cr.C. provides for the application of the provisions for the arrest of individuals in order tocompel them to appear before a justice of the peace. [40] R. c. Cook, 2014 QCCS 6657 . [106] Justice Vauclair’s observations resonate with those of Justice Paciocco, of the Ontario Court of Justice, for whom the victimsurcharge amounts to an indeterminate sentence.[80] [107] As already mentioned, the only evidence before the trial judge with respect to the financial capacity of the appellant

demonstrates that his sole revenue to date is a $400 monthly government aid payment. This evidence is uncontested. [ 108 ] According to Statistics Canada, the low-income before tax cut-off for a person such as the appellant (that is to say, a single adult, with no children, living in a city with a population greater than 500,000) is $24,328, [81] which is several times the income of the appellant. [ 109 ] In these circumstances, imposing a surcharge of $1,400 is excessive to the point of being incompatible with human dignity.

Moreover, in my view, most Canadians would be shocked to learn that a judge had imposed a surcharge representing 30% of the yearly income over a person who lives on only $4,800 per year. [ 110 ] What’s more, the most peculiar circumstance of this case is the following. Here, the trial judge was able to exercise the discretion that has now been withdrawn . He was able to exempt the appellant from paying the surcharge for the offences committed prior to the amendment.

As already noted, if the offences had been committed a little later in time, the appellant would have owed the State a sum of $4,000, which he could not be realistically expected to pay in cash, and for which the alternative payment options would have been even more onerous for someone trying to reintegrate into the social fabric, as detailed in the tables produced above. [ 111 ] As such, the analysis of the reasonable hypothetical circumstances raised by the appellant remains relevant, notably the hypothetical in which he would have committed the same offences after the challenged amendments. [ 112 ] This brings us to the following question.

Did the trial judge err in law in his analysis of the reasonable hypothetical circumstances? [ 113 ] In Nur , the Supreme Court re-examined the reasonable hypothetical analysis in detail.

The Supreme Court clarified that courts may consider not only the offender’s own situation, but also any other reasonably foreseeable situation in which the provision could apply. [82] The range of hypothetical circumstances in thus very broad, excluding only circumstances which are “remote” or “far- fetched”. [83] Consideration of reported cases is explicitly permitted. [84] As such, the court may take into account the personal characteristics of individuals to whom a minimum sentence may apply, but must take care not to construct the most innocent and sympathetic case imaginable. [85] The two reasonable hypothetical circumstances raised by the appellant [ 114 ] In the case at bar, as I have said above, the range of reasonable hypothetical circumstances seems to me almost limitless because the victim surcharge applies to all infractions in the Criminal Code .

With respect for the opposing view, I find the trial judge erred in refusing to consider the two hypothetical circumstances raised by the appellant.

The hypothetical of 56 charges of being illegally at large [ 115 ] The trial judge rejected the hypothetical of an individual charged with 56 counts of being “illegally at large” because, in his opinion, the financial capacity of the accused is irrelevant to the analysis. [86] This position is clearly ruled out by Nur , not only because the decision teaches us that the circumstances of the offender may be taken into account, but also because it specifically provides for the consideration of reported cases.

As described in the appellant’s motion for a declaration of unconstitutionality, this hypothetical was inspired by a recent file of one Mr. Lacroix in the District of St-François. [ 116 ] The docket in this file reveals that the offender was facing 56 charges of being illegally at large, all of which were pursued by indictment. If these charges had been maintained, Mr. Lacroix would have been subject to the imposition of a victim surcharge of $11,500. The appellant made the observation that even if the prosecution had elected to proceed by

summary conviction, the victim surcharge would still have totaled $5,600, that is to say more than the general minimum fine of $5,000 provided for at s. 787(1) Cr.C . In the end, a stay of proceedings was ordered with respect to 55 of the 56 charges. [ 117 ] Citing the decision Desjardins , [87] the trial judge here opined that, where there are multiple charges, the totality of the victim surcharge may not serve to demonstrate that a sentence is grossly disproportionate.

As I have already mentioned, he was of the opinion that the appellant had only himself to blame, in light of the number of the offences committed. [88] The Attorney General for Quebec also takes up this argument, adding that “courts have rejected this global approach to pecuniary sanctions.” [ 118 ] The Attorney General’s argument is easily dismissed. [89] In support of her argument that courts have rejected the “global” approach, she invokes a single decision rendered by the Court of Quebec: AMF c.

Demers . [90] With respect, it would be difficult to find a case further from the one before us. [ 119 ] In Demers , the Court of Quebec imposed both a fine of $1,297,500 and 30 months of imprisonment upon Steven Demers, who had been found guilty of 346 charges. Mr. Demers had helped two companies (1) to distribute investments without issuing a prospectus and (2) to act as securities dealers without being registered with the AMF.

In light of these particular facts, it is hardly surprising that the decision has only rarely been cited in a context other than prosecutions by the AMF. [91] [ 120 ] The appellant’s case can also be distinguished from decisions rendered pursuant to the Excise Act , including the Desjardins decision cited by the trial judge. [92] In this line of decisions, four appeal courts determined that considerable minimum sentences were neither cruel nor unusual because the sentences took into account the amount of contraband, the magnitude of the illegal profit realized, and the fine imposed.

In other words, the fine imposed was proportional to the guilt of the offender. [ 121 ] The proportionality argument is difficult to sustain in the case of the victim surcharge which amounts to only $600 for the murderer of a family of three, but $11,600 in the hypothetical circumstance raised by the appellant. It is also difficult to sustain in a case similar to the appellant’s.

[ 122 ] In the case at bar, the only reason that the trial judge was able to arrive at a lower victim surcharge was precisely because he was able to exercise a discretionary power which has now been withdrawn from him.

As the Supreme Court has underscored, Parliament may limit the court’s ability to impose a fit sentence, but it may not require the imposition of grossly disproportionate punishment. [93] [ 123 ] To tell the truth, I have difficulty understanding why the appellant did not raise his own circumstances as a reasonable hypothetical circumstance where had he commited his crimes only a few months later, he could have not avoided a debt of at least $4,000. [ 124 ] In my opinion, such a surcharge would be clearly and grossly disproportionate.

In the best of cases, such a surcharge would translate into monthly payments made over the course of six years, five and half weeks of full-time work, or 50 days of imprisonment – in addition to the 36 months of imprisonment already imposed. [ 125 ] The conclusion that this result causes the appellant undue hardship flows from the very reasoning adopted by the trial judge.

If the judge believed that an overall sentence of 36 months of imprisonment and a victim surcharge of $1,400 was just, then in exercising the discretion now withdrawn, he necessarily believed the same period of imprisonment coupled with a victim surcharge of $4,000 would cause the appellant undue hardship. [ 126 ] The jurisprudence is riddled with examples of offenders who would be unjustly affected by the victim surcharge.

I share the opinion of Judge Paciocco that without the discretion to reduce it in the case of an indigent person, an automatic sentence such as this “ …deprives [offenders] of the ability to repay their debt to society.

Because they do not have the means to repay, they lose the opportunity to be restored.” [94] I believe that it is both incoherent in law and contrary to human dignity to impose sentences that amount to indeterminate sentences for the sole reason that the offender is poor. [ 127 ] For this reason, the repeal of the judicial discretion previously provided for at s. 737 Cr.C . is, in my opinion, unconstitutional. [ 128 ] This being the case, it seems unnecessary to consider the hypothetical of an offender who could benefit from unconditional discharge, which is, at any rate, inapplicable here.

In respect of the principle of judicial reserve, I refrain from further comment. Is the infringement justified by the application of s. 1 of the Charter? [ 129 ] Even though the parties did not address the matter, it is necessary to consider the application of s. 1. In this case, it remains possible to dispose of the question by supplementing the file on appeal with “common sense and inferential reasoning”. [95] I emphasize that at this stage of the analysis, it falls to the State to demonstrate that the infringement of the right provided by s. 12 is reasonable in a free and democratic society.

No explanation at all was proferred by the prosecution for this lapse of its duty to provide the Court with the means to assess this issue.

Nevertheless, I will proceed to do so as the law so requires. [ 130 ] No one challenges the objective pursued by the legislature, that is to say, encouraging accountability among offenders through the imposition of a fine which serves to finance provincial and territorial victim support services. [96] However, where the victim surcharge is imposed without regard to the offender’s ability to pay, it seems to me that there is no rational connection between this objective and the measure chosen.

To impose a surcharge which, by all accounts, will never be paid does not serve to advance the legislator’s objective: it is simply punishment for punishment’s sake, which is both cruel and legally incoherent. [ 131 ] Even if I am wrong in this assessment, it seems obvious to me that a sentence which is grossly disproportionate is incapable of respecting either the requirements of minimal impairment or proportionality. [97] I repeat: where the victim surcharge will never be paid, there is no benefit realized that will trigger the application of s. 1 of the Charter . [ 132 ] Thus, I propose to grant the appeal in part to declare unconstitutional s. 737 of the Criminal Code as it is currently drafted, that is to say, without the former subparagraph 5 which has now been eliminated, and to overturn the order regarding the victim surcharged imposed at trial.

NICOLE DUVAL HESLER, C.J.Q.

REASONS OF MAINVILLE, J.A. [ 133 ] Does the withdrawal of a court’s discretion to exempt an offender from the application of the federal victim surcharge provided at s. 737 of the Criminal Code result in that surcharge becoming a cruel and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms ? [98] This is the issue raised by the appellant. [ 134 ] For the reasons that follow and those set out by Justice Schrager, J.A., I conclude that a mandatory contribution to assist victims of crime amounting to 30% of the fine imposed for an offence or, if no fine is imposed, $100 for an offence punishable by

summary conviction or $200 for an offence punishable by indictment, is not cruel and unusual punishment. [ 135 ] This conclusion rests, inter alia , on the fact that (

a) a judge may take the victim surcharge into account in determining what is the just and appropriate sentence; (

b) no civil enforcement measures may be undertaken to ensure payment of the surcharge; (

c) the time allotted for payment may be extended to ensure that an impecunious offender does not risk having a license or permit refused or suspended for defaulting on payment; (

d) an impecunious offender may not be imprisoned for default of payment so long as he or she

does not have the means to pay; and (

e) in most Canadian provinces and territories, including Quebec, an optional program exists for payment through earning credits for work performed. The Victim Surcharge [ 136 ] Incorporated in the Criminal Code in 1989, [99] the victim surcharge allows for financial contributions to provincial and territorial services dedicated to supporting the victims of crime. This measure provides a partial reparation for the wrongs caused to victims or to the community by all offenders.

It also seeks to raise awareness among offenders of their responsibilities towards victims and the community that flow from their criminal activities. [ 137 ] The sums collected by way of the victim surcharge are applied to assisting victims of crime under the direction of the provincial or territorial governments where the fines are imposed.

In Quebec, s. 13 of An Act Respecting Assistance for Victims of Crime [100] provides that these sums are transferred to the Crime Victims Assistance Fund. [ 138 ] The victim surcharge is distinct from orders of restitution made under s. 738 of the Criminal Code in that it is not intended to constitute a direct payment from the offender to the victim.

Rather, the victim surcharge is intended to establish a form of collective compensation for victims of crime to which all offenders contribute. [ 139 ] As originally drafted in 1989, the provisions of the Criminal Code respecting the victim surcharge required the court to order each offender to pay it, but left the determination of the amount to the discretion of the court, with the reserve that it could not be greater than the lesser of (a) 15% of the fine imposed or (

b) if no fine was imposed, the amount provided by regulation, which at that time was $35. The court could also exempt an offender from the victim surcharge if it could be demonstrated that its imposition would cause undue hardship to the offender or the offender’s dependents. If an exemption was granted, the court was required to provide reasons for its decision. [ 140 ] The sections of the Criminal Code relating to the victim surcharge were amended in 1995, [101] primarily (

a) to add the possibility of imprisonment for default of payment, (

b) to allow courts to modify the amount, method, conditions and period of time allowed for payment and (

c) to specify that the option of a payment by way of credits earned through work was not applicable to the victim surcharge. [ 141 ] The revenues obtained for victim assistance through the victim surcharge were significantly less than what had been anticipated. [102] Studies undertaken by consultants hired by Justice Canada in the early 1990s revealed that in many cases courts did not consider the victim surcharge or forgot to impose it, particularly where the sentence did not take the form of a fine. [103] A 1992 study on the operation of the victim surcharge in British Colombia revealed that it was rarely applied. [104] Another study, from 1994, concluded that in Ontario the victim surcharge had been imposed in only approximately 15% of applicable cases. [105] [ 142 ] In 1997, the provincial justice ministers requested the Minister of Justice of Canada to modify the victim surcharge by making its imposition automatic and increasing the amounts. [106] This request led to amendments to the Criminal Code in 1999. [107] [ 143 ] The 1999 amendments rendered the amount of the victim surcharge non-discretionary.

At that time, the legislation set the amount of the victim surchage at 15% of the fine imposed for the offence or, if no fine was imposed, $50 for an offence punishable by

summary conviction or $100 for an offence punishable by indictment. The court could, however, increase the amount. If, however, the offender so requested and demonstrated undue hardship, the court could provide an exemption, but it was then required to provide written reasons for its decision. [ 144 ] The 1999 amendments also clarified the means of executing the surcharge. The sections of the Criminal Code relating to imprisonment for failure to pay a fine continued to apply to the victim surcharge.

The sections allowing provincial authorities to refuse or suspend a permit or license until full payment had been made became applicable to the victim surcharge.

However, the option of payment by compensatory work was still not applicable to the victim surcharge. [ 145 ] Implementation problems persisted even after the legislative amendments of 1999, leading the Attorney General of Manitoba to recommend in 2005 that the amount of the federal victim surcharge be increased to 20% of the fine imposed. [108] The Canadian, provincial and territorial ministers of justice agreed to submit the question to a Federal Provincial Territorial Working Group on Victims of Crime.

New Brunswick’s Deputy Minister of Justice proposed his province as the site of a pilot project to study the victim surcharge, the results of which would serve as the basis for a discussion regarding the effectiveness of the provisions relating to this surcharge. [109] [ 146 ] This study, published in 2006, revealed that over a five-year period (2000-2005) the victim surcharge exemption rate in New Brunswick was 66.2%, despite a high rate of actual collection of the surcharges imposed – even within the prison population.

In 99% of the files studied, no reasons were entered into the record when an offender was exempted from paying the surcharge. [110] A second study undertaken in 2007 in the Northwest Territories made similar observations with respect to exemption rates. [111] These observations were further confirmed by a more recent 2013 study in Saskatchewan covering the period 2002-2003 to 2006-2007 which revealed an average exemption rate of 73%. [112] [ 147 ] The 2013 amendments to the Criminal Code [113] sought to change this situation through three modifications to the victim surcharge regime [114] . [ 148 ] First, the amount of the victim surcharge was increased to 30% of the fine imposed and, if no fine was imposed, $100 for an offence punishable by

summary conviction and $200 for an offence punishable by indictment. [ 149 ] Second, the judicial discretion to exempt an offender on the basis of undue hardship was withdrawn, thereby eliminating any exemptions from the measure. It is worth noting that many Canadian provinces had already adopted their own mandatory victim surcharge regimes which did not provide for any judicial discretion with respect to the imposition of the surcharge. As an example, in

Quebec a surcharge was integrated into the Code of Penal Procedure in 2002 by way of s. 8.1 (which is still in force); this surcharge is imposed in addition to provincial fines, including minimum fines, without regard to any hardship experienced by the offender. [115] [ 150 ] Third, the option of payment by way of compensatory work was extended to offenders who do not have the financial means to pay the victim surcharge in the provinces and territories offering such programs: Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Alberta, Saskatchewan, Manitoba, the Yukon, the Northwest Territories and Nunavut. [116] [ 151 ] Consequently,

section 737 of the Criminal Code which provides for the victim surcharge, is now drafted as follows: 737

(1) An offender which is convicted, or discharged under

section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.

(2) Subject so subsection (3), the amount of the vicim surcharge in respect of an offence is (a) 30 per cent of any fine that is imposed on the offender for the offence, (

b) if no fine is imposed on the offender for the offence, (i) $100 in the case of an offence punishable by

summary conviction, and (ii) $200 in the case of an offence punishable by indictment.

(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.

(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been established, the surcharge is payable within a reasonable time after imposition. (5) and (6) [Repealed, 2013, c. 11, s. 3 ] 737

(1) Dans le cas où il est condamné – ou absous aux termes de l’article 730 – à l’égard d’une infraction prevue à la présente loi ou à la Loi réglementant certaines drogues et autres substances , le contrevenant est tenu de verser une suramende compensatoire, en plus de tout autre peine qui lui est infligée.

(2) Sous reserve du paragraphe (3), le montant de la suramende compensatoire représente :

a) trente pour cent de l’amende infligée pour l’infraction;

b) si aucune amende n’est infligée : (i) 100 $ pour une infraction punissable sur declaration de culpabilité par procedure

sommaire, (ii) 200 $ pour une infraction punissable sur declaration de culpabilité par mise en accusation.

(3) Le tribunal peut, s’il estime que les circonstances le justifient et s’il est convaincu que le contrevenant a la capacité de payer, ordonner à celui-ci de verser une suramende compensatoire supérieure à celle prevue au paragraphe (2).

(4) La suramende compensatoire est à payer à la date prevue par le lieutenant-gouverneur en conseil de la province où la suramende est impose ou, à défaut, dans un délai raisonnable après l’imposition de la suramende. (5) et (6) [Abrogés, 2013, ch. 11, art. 3 ]

(7) A victim surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.

(8) The court shall cause to be given to the offender a written notice setting out (

a) The amount of the victim surcharge; (

b) The manner in which the victim surcharge is to be paid; (

c) The time by which the vicitim surcharge must be paid; and (

d) The procedure for applying for a change in any terms referred to in paragraphs (

b) and (

c) in accordance with

section 734.3. (9) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular, (

a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and (

b) the notice provided uner subsection (8) is deemed to be an order made under

section 734.1. (10) [Repealed, 2013, c. 11, s. 3 ]

(7) Les suramendes compensatoires sont affectées à l’aide aux victimes d’actes criminels en conformité avec les instructions du lieutenant- gouverneur en conseil de la province où elles sont infligées.

(8) Le tribunal fait donner au contrevenant un avis écrit établissant, en ce qui concerne la suramende compensatoire :

a) le montant;

b) les modalités de paiement;

c) l’échéance du paiement;

d) la procedure à suivre pour presenter une demande visant à modifier les conditions prévues aux alinéas

b) et

c) en conformité avec l’article 734.3.

(9) Les paragraphes 734(3) à (7) et les articles 734.3, 734.5, 734.7, 734.8 et 736 s’appliquent, avec les adaptations nécessaires, aux suramendes compensatoires infligées aux termes du paragraphe (1) et, pour l’application de ces dispositions :

a) à l’exception du paragraphe 734.8(5), la mention de « amende » vaut mention de « suramende compensatoire »

b) l’avis donné conformément au paragraphe (8) est réputé être une ordonnance rendue par le tribunal en application de l’article 734.1. (10) [Abrogés, 2013, ch. 11, art. 3 ] The Analytical Framework of

section 12 of the Charter [ 152 ] The origins of

section 12 of the Charter are to be found in England’s 1688 Bill of Rights , [117] which provided: That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. [TRANSLATION] Il ne pourra être exigé de cautionnement excessif, ni imposé d’amendes excessives, ni infligé de châtiments cruels et

inusités. [ 153 ] Protection against excessive bail is now found at 11(

e) of the Charter , which states that every accused has the right not to be denied reasonable bail without just cause. Protection against cruel and unusual punishment is provided at

section 12 of the Charter : 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités. [ 154 ] On the other hand, unlike the English Bill of Rights or the American Bill of Rights , [118] the Charter provides no express protection against excessive fines. Nor does the Canadian Bill of Rights [119] provide for such protection.

This then begs the question of whether protection against excessive fines is provided for under the Charter . [ 155 ] It is trite law that the Charter does not provide full protection of property. [120] It can thus be argued that it does not offer protection against fines because these are generally executed against assets. A large and liberal

interpretation of the Charter , however, leads to another conclusion. [121] [ 156 ] A fine which is merely excessive does not fall within the ambit of the Charter since no specific protection is so provided. The protections of the Charter extend to a fine where its direct effects (by virtue of its amount) or indirect effects (by virtue of a prison term or execution measure following default) fall under the narrow concept of “cruel and unusual treatment or punishment” set out in

section 12 of the Charter . To invoke this

section of the Charter , it is not sufficient that a fine be excessive; it must be cruel and unusual. [ 157 ] Due to the nature of fines, it is clear that only in rare circumstances will a fine be qualified as cruel and unusual. As Justice Cory indicated in Steele v. Mountain Establishment : [122] It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter . The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.

A lesser test would tend to trivialize the Charter . These words of caution apply with even more force in the case of a fine. [ 158 ] In fact, to this date, no fine has been invalidated by the Supreme Court under

section 12 of the Charter . [123] In addition, our Court in Zachary v. Canada (Attorney General) , [124] the New Brunswick Court of Appeal in R. v. Desjardins , [125] the Prince Edward Island Court of Appeal in R. v. MacFarlane , [126] and the Court of Appeal for Ontario in R. v. Pham [127] have all refused to declare fines imposed pursuant to the Excise Act [128] contrary to

section 12. In Pham , Justice Goudge rejected the argument that the offender’s inability to pay the applicable minimum fine of $154,000 could justify invoking

section 12: [129] Nor is the appellants' apparent inability to pay the fine of much weight in the s. 12 analysis. Indeed in R. v. Desjardins , supra , at p. 338, Bastarache J.A. (as he then was) said that this factor is immaterial to the analysis in light of the obvious illegal profits to be derived from such an operation. Although the fines represent a very substantial financial liability for the appellants, any impact on the s. 12 analysis is attenuated by their right under s. 734.3 of the Criminal Code to apply for an extension of time beyond the two-year period imposed by the trial judge.

Moreover, while the term of imprisonment which the trial judge elected to impose in default of payment is not, strictly speaking, a part of a minimum fine provision, s. 734.7 of the Code attenuates its impact as well by permitting a warrant for committal to be issued only where the offender has refused to pay the fine without reasonable excuse. [ 159 ] The expression “cruel and unusual treatment or punishment” at

section 12 of the Charter must therefore be taken as a concise formulation of a strict constitutional norm: the punishment must be excessive to the point of being incompatible with human dignity; in other words, it must be so excessive as to be abhorrent or intolerable to society. [130] [ 160 ] This strict constitutional norm has been consistently applied - Chief Justice McLachlin provides a recent example in Lloyd : [131] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive.

It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society […] [ 161 ] It is through this strict analytical lens that the

section 12 analysis must be undertaken. [ 162 ] The analysis has two aspects.

The first aspect requires the assessment of the challenged penalty from the perspective of the person actually subjected to it. [132] If the particular facts of the case do not warrant a finding of gross disproportionality, there remains another aspect to consider, namely whether the constitutional validity of the penalty on grounds of gross disproportionality can be established by reasonable hypothetical circumstances, excluding cases that are far-fetched or marginally imaginable. [133] As Chief Justice McLachlin recently indicated in Nur , [134] there is no need to overcomplicate the matter in this second aspect of the analysis.

The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are so grossly disproportionate to some peoples’ situations resulting in a violation of

section 12 of the Charter . The terminology of “reasonable hypothetical circumstances” may be helpful in this regard, but the primary focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. The process is fundamentally at its core simply an application of well- established principles of legal and constitutional

interpretation. [ 163 ] The recent decision Nur [135] teaches us that the analysis itself proceeds in two stages. The first stage consists in determining what would constitute a proportionate sentence for the offense, having regard to the objectives and principles of sentencing in the Criminal Code . The second stage consists in deciding whether the challenged provision requires the imposition of a grossly disproportionate sentence. The Chief Justice of Canada describes the two steps of the analysis in more detail: [136] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur , at para. 46 . First, the

court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonablehypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriatesentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grosslydisproportionate to the offence and its circumstances: Smith, at p. 1073; R. v.

Goltz, (SCC), [1991] 3 S.C.R. 485, at p.498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at pp.337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence thatis fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit andproportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances?

If so, theprovision violates s. 12. [164] Finally, a mandatory minimum sentence is more susceptible to depart from the principle of proportionality in sentencing,particularly when it is applicable to a wide range of potential conduct.[137] But this in itself does not lead to the conclusion that amandatory minimum sentence is cruel and unusual.[138] General deterrence and other relevant factors may support a mandatoryminimum sentence which, while severe, remains within the range of punishments which are not cruel and unusual.[139] As Chief JusticeDickson indicated in Smith, “[a] minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual.”[140] Thesame is obviously true for a mandatory minimum fine.

It is only if the mandatory minimum fine does not respect the strict constitutionalnorm that it may be declared invalid. Arguments on appeal [165] The appellant does not challenge the victim surcharge itself. He challenges the withdrawal of the court’s discretion to exempt anoffender from paying the surcharge where the offender establishes undue hardship. [166] This is an important point in the analysis because the task is not to determine whether the general imposition of the victimsurcharge on any offender is cruel and unusual punishment.

The appellant recognizes that it is not the measure itself which isunconstitutional, and rather appears to agree with the principle that offenders be obligated to contribute to the assistance of victims. Hisprinciple critique, then, is that the victim surcharge is mandatory in all cases, which, according to him, could lead to injustices,particularly in the case of offenders who do not have the financial means to pay the victim surcharge, thus rendering its imposition “crueland unusual” within the meaning of

section 12 of the Charter. [167] The appellant raises two primary arguments. [168] First, he advances that the victim surcharge is a minimum sentence which precludes the court – in all cases – from ordering anabsolute or conditional discharge, thus rendering

section 730 of the Criminal Code meaningless. He submits that in the absence ofjudicial discretion not to apply the victim surcharge in the event of a discharge, no accused may benefit from a discharge, a situationwhich would be cruel and unusual. [169] Second, he adds that in the absence of judicial discretion, the sentencing principles of proportionality and individualisation areput aside because the victim surcharge is added to the just sentence imposed by the court. This leads to unjust results in all cases, butespecially with respect to impecunious offenders.

He further adds that, in light of his financial status, the amount of the victim surchargethat was imposed upon him is so grossly disproportionate to his personal situation that it amounts to cruel and unusual punishment in hiscase. This would also be the case in many other reasonable hypothetical circumstances involving impecunious offenders.

Analysis [170] The appellant’s first argument can be easily dismissed. [171] Subsection 730(1) of the Criminal Code allows a court before which “an accused, other than an organization, pleads guilty to oris found guilty of an offence, other than an offence for which a minimum punishment is prescribed […] [to] by order direct that theaccused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).” [172] Subsection 737(1) regarding the victim surcharge provides, among other things, that an offender who is “discharged undersection 730 […] shall pay a victim surcharge, in addition to any other punishment imposed on the offender.” [173] The relevant rule of statutory

interpretation has been reiterated many times by the Supreme Court of Canada:[141] Today there i

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