Her Majesty the Queen - v. -, 2014 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 070 Date: April 10, 2014 Information: 36655608 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Quincy James Shaddon Appearing: Ms. B. Harder For the Crown Ms. L. Watson For the Accused JUDGMENT B.M. SINGER , J [ 1 ] On January 22, 2014, Mr. Shaddon was sentenced to six months incarceration. On that same date he plead guilty to two charges of breach of undertaking. He had been in custody for about 83 days prior to January 22 nd .

I concluded that his time on remand was sufficient penalty for his charges. Each of the charges had arisen after October 24, 2013, so I invited argument on the question of the appropriate victim surcharge. [ 2 ] The Crown ’ s position was simply that the victim surcharges were mandatory and had to be imposed. The position of the defence was that the Accused had no ability to pay and that they should not be imposed.

[ 3 ] I raised section 737(4) of the Criminal Code ; this

section requires the Lieutenant Governor in Council of the province to pass a regulation to establish a time within which an offender must pay the surcharge on all penalties except fines. The consequences of not paying the surcharge within that time are severe, as the fine option program is not available in this province for payment of the victim surcharges. This means that an individual must actually pay them or may face loss of their driver ’ s licence, or even incarceration.

I was concerned that without a time fixed by the province within which an offender must pay the victim surcharge it was impossible to impose one. [ 4 ] The Lieutenant Governor in Council had in December 1999, passed a regulation governing payment of the victim surcharges [reg. 708/1999] . That regulation in its body incorporates parts of s. 737 of the Criminal Code , specifically s. (5) as it then was.

Section (5) allowed an offender to apply to a Court to exempt him/her from payment of the victim surcharge if the offender could establish that undue hardship to the offender or the dependants of the offender would result from its payment. Regulation 708/1999 went on to say that when a surcharge was imposed on a sentence that was not a fine, that the time established to pay that surcharge was to be within 30 days from the date of the conviction for the offence. [ 5 ] On October 24, 2013, the law changed as regards to victim surcharges.

Offenders were no longer able to apply to a Court for exemption from paying a victim surcharge. The ordering of such a surcharge was made mandatory and the minimum amount for that surcharge was set. Now in every case, whether the judge is sentencing an individual to jail, a conditional sentence, a suspended sentence with probation, or even an absolute or conditional discharge there is a mandatory victim surcharge. [ 6 ] The question then arises, what is the effect of the amendment and repeal of portions of s. 737 of the Criminal Code on reg. 708/1999. [ 7 ] In Mr. Shaddon ’ s case the sentence was jail.

I determined that the time spent on remand was appropriate as a sentence already served. He had no ability to pay a victim surcharge, indeed, as he was to be incarcerated further on another matter, he certainly could not have paid any surcharge within 30 days of his conviction. The minimum mandatory victim surcharge was $100.00 on each count. [ 8 ] The

Interpretation Act , 1995 , SS 1995, c-I-11.2 governs statutory

interpretation and as such guides the determination of the effect of the repeal of s. 737(5) on the Order in Council.

Section 29 of the Act states that: 29(1) In an enactment, a citation of or reference to another enactment shall be interpreted as a citation of or reference to the other enactment as amended from time to time. [ 9 ] Similarly, s. 35(2) of the Act speaks to extra-provincial or federal legislation that is referenced in the Saskatchewan legislation; suggesting that if the regulation or statute from outside the province is repealed then a reference to that statute in the province is a reference to a substituted provision. [ 10 ] Where, as in this regulation, reference is made to a particular provision that is incorporated in the regulation, (in particular 737(5) is specifically reproduced in the regulation) it is referred to as a “ closed or static ” incorporation. [See John Mark Keyes, Executive Legislation , 2d ed (Markham: LexisNexis, (2010).] In the case of a closed incorporation, changes made to the referenced statute, ss. 29 and 35(2) of The

Interpretation Act are not instructive. [ 11 ] Section 35(1)(

g) may be the operative

section of The

Interpretation Act that sheds some light on the problem. That

section says: Where an enactment is repealed and a new enactment is substituted for it:

(

g) All regulations made pursuant to a repealed Act remain in force and shall be deemed to have been made pursuant to the new Act, inso far as they are not inconsistent with the new Act. (italics mine) [12] To determine if the regulation is consistent and can stand requires a review of the legislative intent. [R. v. Pott,[2011] S.J. No. 216; Conseil Scolaire Fransaskois v. Saskatchewan, [2013] S.J. No. 179.] [13] In R. v. D.A.I., 2012 SCC 5 , [2012] 1 S.C.R. 149 at para. 26, McLachlin C.J. restated that “... the first andcardinal principle of statutory

interpretation … is that one must look to the plain words of the provision” and further in Re Rizzo & RizzoShoes Ltd., (SCC), [1998] 1 SCR 27, at para. 27 “It is a cardinal principle of statutory

interpretation that legislationshould be read and interpreted in a way that gives effect to its purpose…”. Purpose can be inferred by analysing the plain language andscheme of the legislation. [R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 SCR 295.] [14] An application of the rules of statutory

interpretation and a purposive analysis to the express inclusion, in reg.708/1999 of the entirety of s. 737(5) implies that the words were not added superfluously, but were included for a definitive reason. Inparticular, this inclusion discloses that s. 737(5) is essential to achieving the original purpose of the Order in Council. The hardshipexception includes the hardship of paying the victim surcharge within 30 days. Thus the inclusion of the discretionary s. 737(5) speaks tothe purpose of the Order in Council.

The removal of this discretion by the repeal of s. 737(5) effects a different function of the Order inCouncil which is distinct from that of the original purpose, and is, thus inconsistent with the new Act. [15] Consequently, the Order in Council is not consistent with the new Act and cannot remain in force, pursuant to s.35(1)(

g) of The

Interpretation Act, the result being that there is no time frame for payment of the victim surcharges. [16] There being no Order in Council, there is only one possible consequence. The judge can order a victim surchargeand pick whatever time is reasonable to pay. This would be to take a purposive approach. The consequence of non-payment may be jail. Imprisonment is meant to encourage offenders who are capable of paying to pay; it is not meant to punish offenders who genuinelycannot pay. [R. v.

Wu, 2003 SCC 73, para. 39.] [17] In this case the appropriate order as to the victim surcharge is the minimum $100.00 on each charge and further inthe hope that someday Mr. Shaddon will have the ability to pay the surcharge he will be given 5 years time to pay, which I believe isreasonable in his circumstances. _______________________ B.M. Singer, J