r v. Richard, 2014 QCCQ 464

R. c. Cloud 2014 QCCQ 464 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-098201-137 DATE: 3 February 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Richard Jason CLOUD Accused _____________________________________________________________________________ JUDGMENT (Sentence) _____________________________________________________________________________ I Introduction [ 1 ] This case concerns the application of the surcharge [1] and requires consideration of the relation among principles of sentencing.

These include the fundamental principle of proportionality [2] and other principles, purposes and objectives in sentencing: [3] individualisation of decision-making, [4] consideration of aboriginal offenders, [5] parity, [6] restraint, [7] and totality. [8] II Guilty Pleas [ 2 ] On 20 December 2013 Mr. Cloud pleaded guilty to two indictable offences committed on 13 November 2013. (Mr. Cloud has been in custody since his arrest that day.) Both counts are hybrid offences and the prosecution elected to proceed by indictment.

He pleaded guilty to one count of mischief to property not exceeding five thousand dollars ($5000.00) [9] and one count of assault with a weapon. [10] With respect to the first count he deliberately knocked over a display inside a convenience store. An altercation ensued and in the course of it Mr. Cloud struck a person in the face and in the back with a stone; hence the second count. The gravity of this offence is self-evident. Fortunately, it appears that the victim of this assault suffered no permanent injury.

Although nothing was said of it by the parties, I would note that according to the criminal record put before me the offences were committed while Mr. Cloud was subject to a tw0-year probation order that was imposed in June 2013. [11] III Joint Submission

[ 3 ] Once the voluntariness of the pleas and the accuracy of the facts were ascertained, the parties made a joint submission for sentence. They proposed a term of imprisonment of three months with a probation order of twenty-four (24) months to follow. Apart from these two elements, nothing further was included at that time in the terms of the joint submission. I made clear that in my view, save one possible exception, the joint submission was reasonable. The possible exception is easily identified. Given the date of the offences, I asked the parties whether they had anything to add concerning the surcharge under

section 737 of the Criminal Code , as amended in 2013. [12] (In this case the applicable surcharge, calculated according to the tariff in paragraph 737(1)( b ), would be $200.00 for each indictable count for a total of $400.00.) Neither had anything to say and indeed nothing was said of this in the presentation of the joint submission on 20 December 2013. Neither party had a copy of the amendments of 2013.

I briefly adjourned the proceedings to allow the parties to consider their positions on this question and I specifically invited the prosecution to consult with senior personnel in the office of the Director of Criminal and Penal Prosecutions (DPCP). Upon their return the defence added nothing of substance. The prosecution made clear that it would insist on the surcharge and, further, that its position would not change because it is the policy of the DPCP to enforce the application of

section 737 as amended. [13] [ 4 ] Before concluding the hearing on 20 December 2013, I insisted that the parties should have an opportunity to make further submissions, especially concerning the surcharge. For this reason I adjourned the matter to 9 January 2014. [ 5 ] Before the adjournment I asked Mr. Cloud if he had anything that he wished to say. At first he said that he had nothing to say. I then asked him whether he had a bank account or a job. He has neither and at the time of his arrest he had only five dollars in his pocket.

He said that he was expecting from his band council a payment of $200.00, which is a sum that he receives annually. His only regular source of revenue is social assistance in the amount of six hundred dollars ($600.00) each month, which he began to receive late in 2013. I asked if he had an address and he replied that for the moment he was living with his cousin in Montreal. Mr.

Cloud said that he pays his cousin two hundred dollars ($200.00) each month as a rent and thus has about four hundred dollars ($400.00) each month for “food, alcohol, clothing.” [14] [ 6 ] I informed the parties that the hearing would have to continue in compliance with the conditions imposed by the Supreme Court in Ipeelee [15] with respect to aboriginal offenders, notably an inquiry into the circumstances of Mr.

Cloud and his relations with his community. [16] The Supreme Court makes clear that such an inquiry is obligatory and I understand this to mean that it cannot be waived even by consent of the parties. [17] The Supreme Court underscores this view in saying that failure to comply with the applicable conditions is reversible error. [18] The language used by the Court is strong enough not only to suggest that such a failure will be reversed but that it is tantamount to a failure of jurisdiction.

For this reason, and given the relative urgency of the circumstances entailed by the joint submission, the sentencing hearing began with an inquiry intended to comply with the requirements established in Ipeelee and earlier decisions of the Supreme Court. [19] I should add that neither party was aware of the requirements of Ipeelee and accordingly neither had prepared for a hearing to comply with the requirements imposed by it. IV Mr. Cloud [ 7 ] Mr. Cloud is originally from an aboriginal community on a reserve in eastern New Brunswick. From an early age his life has been unsettled and often turbulent.

He was first removed from his community at the age of four and lived in a series of foster homes. He returned sporadically to his community but never remained there for long. His parents were alcoholic and were sometimes jailed. Although he occasionally returned to his community, Mr. Cloud left there in his teens. He has lost contact with his family and with his community. He has been itinerant since his teens, including long periods of homelessness since the age of seventeen (17). He has never worked and ascribes this to alcoholism.

He has a lengthy criminal record that begins in 1991 and lists multiple convictions, including offences of violence. In his forty-one years he has been in and out of prison for some twenty-two years. [ 8 ] In his own words Mr. Cloud effectively described himself as deracinated. He said that he was estranged from his family, from his home community, from aboriginal communities at large and from society in general.

He said: “I don’t feel like I belong anywhere.” [20] “I don’t know what my place is in this world, I guess.” [21] “I can’t fit in anywhere in society.” [22] “I feel sometimes being a native is a crime in this city.” [23] “There’s not a lot of opportunities for a native homeless guy.” [24] When he was asked about his family and his community in New Brunswick Mr. Cloud said this: “I do not want to go back. No. They are really not my people anymore. I don’t know who they are. I have been out on the streets and I don’t even know who my own family is anymore. They are strangers to me.

My brothers and sisters who I grew up with, I don’t know who they are. They never lived on the streets. They never experienced anything I did. They wouldn’t know how to survive in the city. They’ve been on the reserve all their lives. My dad just gives me one-word answers when I talk to him. It’s like a stranger talking to him, I guess, I don’t know.” [25] [ 9 ] In short, Mr. Cloud’s life is a history of deracination and estrangement. Apart from his own words, there is nothing before me to explain how or why this alienation evolved as it did. Even in the absence of such evidence, it is clear that Mr.

Cloud’s case falls within the type of case so thoroughly examined by the Supreme Court in Ipeelee . [26] Although he says “I got nobody to blame but myself,” [27] his narrative remains a tragic cycle of poverty, homelessness, violence and addiction. He is an uneducated, unemployed man of no permanent address and no means apart from his welfare payment. He has a lengthy criminal record and, despite at least two attempts at therapeutic rehabilitation, a lengthy addiction to alcohol that persists today. With his girlfriend, Amanda, he has a child who was born […] 2013.

That child was taken into care by the Director of Youth Protection. V Submissions

[ 10 ] As noted previously, there is now before me a joint submission for a term of imprisonment of three months and probation for the ensuing twenty-four months with conditions. This was the joint submission as originally presented and consists of two elements. At the conclusion of the continued hearing on 9 January 2014 this joint submission remains, subject to the surcharge of $400.00 contemplated by

section 737 . The parties agree that the surcharge is applicable. The prosecution submits that the surcharge is not only applicable but must be imposed. The defence agrees that it is applicable but submits that it should not be imposed. [ 11 ] The prosecution advanced several points in submissions. Although nothing was said of the surcharge when the joint submission was first presented, the prosecution said that it was taken into consideration in negotiations with the defence. Further, according to the prosecution, a more severe sentence would have been appropriate in view of Mr.

Cloud’s record and the gravity of the offences before the court but the negotiated submission was so low precisely because the surcharge was taken into account. It was “considered part of the global sentence.” The prosecution submitted that, far from being unreasonable or disproportionate, the joint submission with the surcharge was proportionate, even taking into account Mr. Cloud’s aboriginal status.

It submitted that the surcharge is not part of the sentence but “something parallel” that “must be taken separately.” [28] The prosecution said plainly that the elements of the order at sentence could not be manipulated by the imposition of a modest fine “to indirectly repeal or neutralise the amendments.” [29] [ 12 ] The defence candidly admitted that the date of the offence, and therefore the applicable date for the amended surcharge, had not been noted. It said further that the surcharge was not discussed in the course of negotiations with the prosecution.

For the rest the defence said essentially that the surcharge was unreasonable, disproportionate and unfair. It emphasised that this was especially true for an aboriginal person with a background such as Mr. Cloud’s but that it was equally true for any indigent person. For these reasons the defence proposed that although the surcharge would otherwise apply it should not be applied in this case.

In passing the defence agreed with the prosecution that a sentence combining imprisonment, probation and a fine would be illegal. [30] VI Question [ 13 ] The jurisprudence is clear that a joint submission should not be rejected unless it is unreasonable. [31] If it is, the judge must impose a just and appropriate sentence that complies with the principles of sentencing. I have noted [32] that the joint submission of two elements (imprisonment and probation) is reasonable. But the parties now agree that the order in this matter must comprise these two elements and the surcharge.

Specifically, then, the central question I must consider is whether the joint submission with the surcharge would be an unreasonable sentence . [ 14 ] Before considering the analytical concerns in this case I wish to state plainly an essential determination. The joint submission originally proposed by the parties for three months of imprisonment and subsequent probation was entirely reasonable. I said so at the hearing and with one slight modification of the joint submission I hold to that view.

I have also concluded that the surcharge of two hundred dollars ($200.00) on each count, for a total of four hundred dollars ($400.00) is disproportionate and unreasonable - having regard to the offence and the offender. I do not minimise the seriousness of the offences here, especially the offence of assault with a weapon. The mischief caused no enduring damage and the assault caused no enduring injury. But the offences are serious, notably when considered against the backdrop of Mr.

Cloud’s extensive criminal record. [ 15 ] But, as the Supreme Court has said many times, a proportionate sentence must take into account all the relevant circumstances of the offence and the offender. I repeat that Mr. Cloud is unemployed, destitute, alcoholic and of no permanent address. He has lost contact with his family, his community and his people. The imposition of a surcharge of four hundred dollars ($400.00) on Mr. Cloud would serve no principle or objective of sentencing set out in

Part XXIII of the Code or current jurisprudence. There is no reason to believe that it could increase Mr. Cloud’s accountability to the victim of his assault or to anyone else. There is every reason to believe that a surcharge in this amount cannot be reconciled with the principles and objectives of sentencing currently in the Code and in the jurisprudence. Mr.

Cloud’s life is a life of hardship, much of it self-inflicted, and I conclude firmly that I would have waived the surcharge for this reason if this case were concerned with offences committed before the amendments of 2013 came into force on 24 October 2013. [33] VII Surcharge [ 16 ] The surcharge was first enacted in 1988. [34] Until 1996 it was called the “victim fine surcharge” and has since been called simply the “victim surcharge.” [35] In its original formulation the calculus of the surcharge was expressed as follows: […] the court imposing sentence on or discharging the offender shall, in addition to any other punishment imposed on the offender, order the offender to pay a victim fine surcharge in an amount not exceeding (

a) fifteen per cent of any fine that is imposed on the offender for that offence or, where no fine is imposed on the offender for that offence, ten thousand dollars, or (

b) such lesser amount as may be prescribed by, or calculated in the manner prescribed by, regulations made by the Governor in Council, subject to such terms and conditions as may be prescribed by regulations made by the Governor in Council. The calculus of the surcharge later took its current form but with a lower tariff. [36] The tariff was fifteen per cent (15%) of any fine imposed in the sentence or, if no fine was imposed, fifty dollars ($50.00) for each

summary-conviction count and one hundred dollars

($100.00) for each indictable count. Before the amendments of 2013 the surcharge was a mandatory order imposed upon a finding of guilt according to the tariff set out in paragraph 737(1)( b ). This tariff was applicable even in cases where a discharge was ordered but it was mitigated by a judicial discretion in any case to waive its imposition if there were a request to this effect and a concrete basis for believing that there would be undue hardship. As a matter of practice, however, this rule was relaxed in many jurisdictions.

Evidence of hardship was not routinely required and judges would sometimes waive the surcharge without an express request or without extensive reasons. [37] It might be noted that the surcharge was introduced into the Code before the sentencing reform that enacted a new

Part XXIII in the Code with effect from 1996. This is noteworthy because the discretion to waive the surcharge complements the requirement in section 734(2) that a judge inquire into the means of an offender before imposing a fine. The amendments of 2013 doubled the tariff imposed by paragraph 737(1)(

b) so that the surcharge is now thirty per cent (30%) of any fine imposed or, where no fine is imposed, one hundred dollars ($100.00) for each

summary-conviction count and two hundred dollars ($200.00) for each indictable count. The surcharge continues to apply where a discharge is ordered but there is no longer a discretion to waive it for undue hardship or any other reason. It applies to all offences (from murder to shoplifting) and to all offenders (from the richest to the poorest), including aboriginal offenders, without distinction. [ 17 ] A preliminary point concerning the calculus in the surcharge and related costs is useful before entering into a discussion of relevant legal issues.

A case involving ten counts of failing to appear for an intermittent sentence would imply a surcharge of one thousand dollars ($1000.00). A case involving four counts of breach of conditions for (1) drinking alcohol, (2) in a bar, (3) after curfew, and (4) in the company of a person named in a no-contact order would attract a surcharge of four hundred dollars ($400.00). A case involving three counts of shoplifting pork chops would attract a surcharge of three hundred dollars ($300.00).

Default on payment of the surcharge, if community service is not viable, would be discharged by imprisonment calculated in Quebec at approximately $81.00 per diem . Thus an unpaid surcharge of four hundred dollars ($400.00) would imply imprisonment for five (5) days. A conservative estimate of the daily cost of imprisonment to the state might be two hundred dollars ($200.00). To recover an unpaid surcharge of four hundred (400) dollars would therefore cost the public purse one thousand dollars ($1000.00) to imprison the defaulter for five (5) days.

The costs of recovery are thus more than double the amount of the surcharge. And this is for the enforcement of amendments enacted in a statute entitled Increasing Offenders’ Accountability to Victims Act . In the examples just given there is no calculus that would permit the conclusion that the surcharge is consistent with the fundamental principle of proportionality in

section 718.1 of the Code. VIII No Constitutional Question [ 18 ] No constitutional question has been raised in this matter and for this reason I will not answer such a question. [38] To do so requires notice to the Attorney General of Quebec and the Attorney General of Canada in order to afford a proper opportunity for written and oral submissions. Such a question might be posed on the premise that the surcharge violates

section 12 of the Charter because it is grossly disproportionate in this case or in a reasonable hypothetical case. It might also be posed on the premise that individualisation and proportionality in sentencing are principles of fundamental justice under

section 7 of the Charter that are incompatible with the surcharge as amended in 2013. Further, it might be argued that the surcharge raises concerns about equality as it is applied to aboriginal offenders. I repeat that no such questions are before the court today. [39] The Charter need not be invoked, however, to support the following conclusion: as applied to Mr. Cloud, and as applicable to many other offenders, the surcharge imposed by

section 737 would disturb reasonable and informed people because it is disproportionate - having regard to the quantum , the inflexibility of its terms and the inherent arbitrariness in distinguishing between cases where a fine is or is not imposed or cases that proceed by

summary-conviction procedure or indictment. [40] It is a blunt instrument that is far too blunt to achieve any valid penal purpose and it will not, to quote Binnie J. in Wu , “cause the stone to bleed.” [41] But can the surcharge as adopted by Parliament be interpreted in a manner that avoids these effects? IX Caution [ 19 ] Before proceeding further, it is imperative to note that any concerns with the surcharge are not concerns with the policy that animates its existence.

It is beyond question that the establishment and maintenance of a public fund, administered by the provinces and territories for the indemnification of victims of crime, is not only defensible but desirable. In principle there can be no objection to the contribution of offenders to such a fund and if such contributions will enhance their accountability for offending that is an additional benefit.

There appears to be no empirical evidence that an increase in accountability actually is one of the effects of the surcharge but the absence or dearth of such evidence does not diminish the soundness of a policy to establish and maintain a fund. The question is whether the surcharge now in force can be reconciled with principles and objectives of sentencing in Canadian law. X Principles [ 20 ] The parties agree that the surcharge imposed by

section 737, as amended, is applicable here. I agree with them. I have already reviewed the evolution of the surcharge since 1988. To address the central question in this matter, before considering the merits of the issue, I must examine the manner in which it should be characterised in law. For analytical purposes, as will be seen below in detail, a pivotal determination is whether the surcharge is an integral element of a sentence and, if it is, what kind of sentencing instrument it is.

If the surcharge is an integral element of a sentence, the joint submission of the parties is not for a sentence comprising two elements but for a sentence comprising three elements: imprisonment, probation and the surcharge. Following the second day of hearing, the prosecution delivered supplementary submissions in writing. These make three principal assertions: that the surcharge is not a fine, that even if the surcharge were a fine the jurisprudence prohibits the imposition of a fine in addition to imprisonment and probation, and that the surcharge is a form of restitution.

I cannot accept these propositions for the reasons developed below. [ 21 ] I turn now to the principles that I adopt to determine a just, fit and appropriate sentence in Mr. Cloud's case. There are six.

[ 22 ] First, the surcharge is a mandatory order that must be imposed in every case with the sentence, without consideration of the circumstances of the offence or the offender, and without regard for the offender’s ability to discharge this debt. This is the effect of the amendment of

section 737 in 2013. It applies in this case and there is no basis in law on which I can waive its imposition on Mr. Cloud. The discretion to waive the surcharge was repealed in those amendments and that too is clear. The consequences of these amendments are awkward, however, even if they are clear in the manner I have described. For example, suppose a case of two indictable counts in which a fine of four hundred dollars ($400.00) is suggested in submissions on sentence.

The judge is still obliged to consider whether the offender has the means to pay that fine and may reject the option of a fine if the offender lacks the means to pay. If it is rejected, the judge must then determine a just, fit and proportionate sentence that satisfies the principles of sentencing justified by the Code and the jurisprudence. At the same time and in the same case, however, if no fine is imposed the judge must nevertheless impose a surcharge of two hundred dollars ($200.00) on each count for a total of four hundred dollars ($400.00).

If the judge has determined that a fine of four hundred dollars ($400.00) is unreasonable, the same conclusion must ineluctably apply to the surcharge but the amendments deprive the judge of any discretionary power to remedy the imposition of that disproportionate and unreasonable burden. [ 23 ] If the surcharge is not an element of a sentence, what could it be? Several possibilities might be considered. One is that the surcharge is a tax on criminality that is imposed as an administrative charge to alleviate a burden that would otherwise be borne by the state in the administration of criminal justice.

A second might be that the surcharge is an order for costs against the accused, again to alleviate in part the state’s burden of administering criminal justice at the expense of those who necessitate its existence and operation. A third possibility is that the surcharge is an oblique or indirect restitution order in which the offender is ordered to pay into a general fund dedicated to the indemnification of victims of crime and more generally of society at large.

These three views overlap and each allows at least a foothold for an argument that the surcharge is not an element of a sentence but distinct from the sentence. The jurisprudence does not definitively approve of any one or more of these views. A more compelling explanation lies in the Code itself. [ 24 ] Second, the surcharge is an integral element of a sentence. It is not extraneous to the sentence. Either the surcharge is an element of the sentence or it is not an element of the sentence.

At the hearing the prosecution plainly submitted that the surcharge is not an element of the sentence but “something parallel.” In

section 673 and

section 785 the Code provides that a sentence “includes” an order for an enhanced surcharge [42] and before the amendments of 2013 included an order to waive the surcharge under what was section 737(5). This inclusive definition does not purport to be exhaustive. If a sentence could include an enhanced surcharge, or an order to waive the surcharge, it must include the surcharge itself as provided in section 737(2). In

section 673 and

section 785 the inclusion of the enhanced surcharge or the waiver was designed to allow for appellate jurisdiction to review either of these orders. No such inclusion was required for the surcharge itself under section 737(2) if the sentencing judge did nothing more than to apply the tariff set out in that provision. In such a case there could be no appeal but that in no way implies that the surcharge is not an integral element of the sentence imposed.

In passing I note that in Pham the Supreme Court accepted that the sentencing judge may consider the collateral consequences of a sentence, such as deportation, while ensuring fidelity to the principle of proportionality in the terms of the sentence itself. [43] The surcharge is not a collateral consequence but an essential and integral element of the sentence. [ 25 ] Although the surcharge was originally introduced in 1988, before the reform of sentencing in 1996, its continuation after that reform was made subject to the application of the principle of proportionality and all of the other principles and objectives that were adopted in those amendments.

Those principles and objectives continue to apply today throughout

Part XXIII except to the extent that they have been expressly modified or repealed. It follows that the amendments to the surcharge remain subject those principles and objectives with the exception that the discretion to waive it has been repealed. Thus in principle the surcharge remains governed by the principle of proportionality and the individualisation of sentences, not only as applicable to all offenders but notably to aboriginal offenders.

The repeal of the discretion to waive the surcharge does not sit comfortably with these principles and objectives, among others, because they are put further out of reach by the intent and effect of the amendments of 2013. [ 26 ] Third, the surcharge is not only an integral part of a sentence. It is properly described as a mandatory minimum sentence because it allows no exceptions. It applies to every offence and every offender and is subject to variation in only two ways.

It is applied as thirty per cent (30%) of any fine imposed or, if no fine is imposed, as a fixed amount of one hundred dollars ($100.00) for every

summary-conviction count or two hundred dollars ($200.00) for every indictable count. The surcharge is thus contingent on the presence or absence of a fine or on the classification of offences. This would appear to be arbitrary as a measure of the quotient of accountability of offenders. It is not apparent that a reliable and proportionate quotient of accountability can be derived from a percentage of a fine. Even less is it apparent that one-half, or double, the quotient of accountability can be assured by the classification of offences.

This is obvious in the case of hybrid offences that require an election by the prosecution, as is the case with the two counts to which Mr. Cloud pleaded guilty. More to the point, however, the surcharge is properly described as a mandatory minimum sentence because it must be applied even when the offender is given an absolute or conditional discharge, again without regard to the circumstances of the offence or the offender. And, again, Mr.

Cloud’s status as an aboriginal person is irrelevant according to the amendments of 2013. [ 27 ] To repeat, if the surcharge is properly construed as a fine that is an element of punishment – indeed an additional element of punishment - there are ramifications. The most obvious is that it is not only part of a sentence but a mandatory minimum sentence. It applies to all offences and all offenders without regard for means or any distinguishing feature such as aboriginal status.

As an element of a sentence, it follows that to the extent possible the surcharge must be subject to the principle of proportionality and to other principles and objectives of sentencing.

The surcharge, before and after the amendments does not oust or override those principles and objectives but must be interpreted, to the extent permitted within the terms of the legislation, in a manner that is congruent and compatible with them. [ 28 ] There is no need to rehearse the importance that the Code and the jurisprudence accord to the fundamental principle of proportionality and to the related principle of the individualisation of sentencing. Proportionality is most directly concerned with the gravity of the offence and the degree of responsibility in the offender.

But it is more broadly concerned with protection against excessive leniency or excessive harshness in a sentence, having regard as well to the profile of the offender before the court. The individualisation of sentencing constrains a court, within the constraints otherwise imposed by law, to determine a fit sentence with regard to all relevant factors concerning the offence and the offender. This principle is reinforced by the constraining effects of the totality principle, which again imposes a limit on excess. As a mandatory minimum element of a sentence that does not discriminate between offences or

offenders, the surcharge does not sit easily with the principles of proportionality or individualisation. [ 29 ] The only distinction in

section 737 is twofold. First, it distinguishes between cases where a fine is imposed and cases where no fine is imposed. Second, it distinguishes between

summary-conviction offences and indictable offences. As with the law as it stood before the amendment in 2013, these grounds of distinction are seemingly arbitrary but the fixed tariff now imposed certainly calls for renewed attention. With respect to the provisions enacted by the amendments, it is appropriate to recall that they are adopted in an enactment entitled the Increasing Offenders’ Accountability to Victims Act . The tariff is apparently designed to advance this objective but the empirical premise for doing so by this mechanism is not clear. To be precise, it is not clear how the grounds of distinction embedded within

section 737 will enhance the accountability of offenders to victims. [ 30 ] As the surcharge is a mandatory and additional element of a sentence, it enhances and aggravates the severity of the sentence. Perhaps in this context “accountability” has nothing to do with rehabilitation and increasing the offender’s sense of personal responsibility to specific victims or to society in general. This is most apparent in French. The reform of 1996 identified this among the purposes of sentencing: susciter la conscience de leurs responsabilités chez les délinquants, notamment par le tort qu’ils ont causé aux victimes et à la collectivité . The

short title of the amending act in 2013 is this:

Loi sur la responsabilisation des contrevenants à l’égard des victimes . If a surcharge is disproportionate, having regard to the offence or the offender, it is inconceivable that its imposition could augment the accountability of the offender. [ 31 ] The distinction between an offence for which a fine is imposed and an offence for which no fine is imposed might be explained as an attempt to control the severity of a financial penalty. Although the percentage is high, the option of a fine would require a judge to inquire into the offender’s means to pay the fine and, as a corollary, the surcharge. The distinction between the tariff imposed for

summary-conviction ($100.00 per count) and indictable offences ($200.00 per count) is more difficult, not least where the offence in question is hybrid. It can scarcely be expected that the tariff for a

summary-conviction offence will yield half the quotient of accountability that can be expected for an indictable offence. It is inconceivable that the tariff for an indictable offence will yield double the quotient of accountability as for a

summary-conviction offence. The arbitrariness in this calculus is even more troubling if the quotient of accountability in a hybrid offence is a by-product of prosecutorial election to proceed one way or the other. [ 32 ] As an element of a sentence, the surcharge might stand alone in the case of a discharge but typically it must be cumulated with other elements of a sentence and combined together with them in conformity with the principles of sentencing, including proportionality and totality. This is so whatever the other elements of a sentence might be.

Where a sentence contains elements of imprisonment and probation, for example, there will not be just these two elements because a third – the surcharge – must be added to them. This will always be true of every sentence because the Code now permits no exemption or waiver of the surcharge. [ 33 ] Fourth, the surcharge is an integral element of a sentence that is properly defined as a fine. As already noted, this is evident in the inclusion of orders for enhancement or waiver of the surcharge under sections 737(3) and 737(5) respectively for purposes of appeal. It is clearer in the definition of a fine in

section 716: “‘fine’ includes a pecuniary penalty or other sum of money, but does not include restitution.” For reasons that appear below [44] I have concluded that the surcharge is not a form of restitution as legally defined in Canadian criminal law. If that is correct, I also conclude that by any use of language the surcharge is a pecuniary penalty or a sum of money. It is a fine imposed with the hope of increasing the accountability of offenders to victims of crime.

This is a purpose that falls among the objectives of sentencing [45] and for this reason alone I do not hesitate to conclude that the surcharge is a fine. As originally introduced in the Code, the surcharge was sometimes called a “victim fine surcharge.” This can be translated as an additional fine or as a fine upon a fine but the sleight of words cannot alter its substance as a fine. Apart from sophistry, the mechanisms for enforcement of the surcharge confirm that it is properly defined as a fine.

In the reform of 1996 the removal of the word "fine" from the phrase "victim fine surcharge" does not change its nature. As

section 716 provides, it is a pecuniary penalty and a sum of money that is distinguishable from restitution. The surcharge is a penalty imposed in a sentence upon a finding of guilt that is a judgment debt payable to the state. This is the essence of any fine. [ 34 ] These conclusions are reinforced by the language of

section 737 itself. Before and after the amendments of 2013

section 737 requires the imposition of the surcharge “in addition to any other punishment imposed on the offender.” This phrase can leave little doubt that the surcharge is an integral element of the sentence imposed. It could not be otherwise if it is imposed in addition to any other punishment. Its description as part of that punishment does not allow it to be separated from any other parts of a sentence. Further, this phrase confirms that the surcharge is properly construed as a fine within the meaning of

section 716. A fine is a form of punishment; if the surcharge is applied in addition to any other punishment, it too is a fine. [ 35 ] On this point the prosecution delivered written submissions to the effect that the surcharge is not an element of a sentence but something else. I reproduce an extract from these submissions, which includes extracts from Crowell : Pursuant to a contextual definition [of a fine], we submit that the victim surcharge is not a fine. Rather, it is a form of restitution, expressly excluded by the definition of “fine” in s. 716.

To that effect, we believe the following analysis by the Nova Scotia Court of Appeal in R. v. Crowell is apposite: The addition of a victim fine surcharge skews the result, not primarily to punish the offender but to raise money for a program administered by the province. […]

Restitution or compensation, like incarceration, fines and probation, is one of the judicial instruments used for the protection of the public. Its role as such is increasing; it is a deterrent that deprives the offender of the fruits of his crime and aids in the reformation of the sincerely repentant.

In some circumstances it is the best possible protection for specific victims. […] 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. […] The victim fine surcharge is like a tax for the purpose of raising a revenue, but unlike a tax in that it is also a further expression of public reprobation at the time of sentencing. In an important aspect it is penal in its application and its consequences. In its fund raising aspect it represents an effort to rectify the harm done by criminal activity; a public purpose wholly related to the field of criminal law.

Its identification with criminal law interests is so strong I would characterize it as a valid exercise of the federal criminal law making power even if it were strictly indistinguishable from a tax. The purpose will govern. […] 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 of restitution. As such it is penal in its pith and substance and therefore constitutional as a proper matter for parliamentary legislation under s. 92(27) of the Constitution Act, 1867 .

It must be taken into account by criminal court judges in crafting the sentences they impose. [46] This passage merits brief comment. [ 36 ] Crowell was decided before the reform of

Part XXIII by Bill C-41 in 1995. More specifically, it was decided before that reform enacted a statutory declaration of the principles and objectives of sentencing. It is apparent in the passage from Crowell that the Court describes the surcharge in language that is congruent with language used to describe the principles, objectives and instruments of sentencing as they have existed since 1996. The Court assimilates the surcharge to a form of restitution and to other instruments of sentencing such as incarceration, fines and probation – all forms of sentencing.

It describes the surcharge as a deterrent (three times) and notes that it might have some relevance to reformation. It says that it bears some resemblance to a tax but distinguishes it as a tax because it is an expression of public “reprobation at the time of sentencing.

In an important aspect it is penal in its application and its consequences.” And the Court says that it is a “unique penalty in the nature of a general kind of restitution. […] It must be taken into account by criminal court judges in crafting the sentences they impose.” [ 37 ] I repeat that the language of the Court in Crowell is the language of sentencing. It is consistent in this respect with

Part XXIII after the reform of 1996. More to the point is the conclusion of the Court that the surcharge reflects a lawful exercise of Parliament’s exclusive legislative authority over matters of criminal law. Even if much of the passage submitted is obiter dicta , it gains coherence and strength under current law (including

section 716 and the terms of section 737(1)) as an assertion that the surcharge is an integral element of a sentence and that it is properly defined as a fine. [ 38 ] To repeat, the surcharge meets the definition of a “fine” in

section 716. This definition applies with equal clarity to a fine or a surcharge. It is a sum of money that can only be characterised as a pecuniary penalty. It would be an abuse of language to suggest otherwise. This view is reinforced by the language of

section 737 itself. It says that the surcharge shall be imposed “in addition to any other punishment imposed.” This

section not only assimilates the surcharge to a fine for purposes of collection and enforcement. It explicitly identifies the surcharge as a punishment among any other elements of punishment. This, to repeat, is also consistent with the definition of the surcharge as a fine. [ 39 ] Crowell , far from being apposite in this case, and having been considered before the reform of 1996, is entirely consistent with a definition of the surcharge as a mandatory element of a sentence that is not only a punishment but a fine.

Further, the only question in that decision was whether the surcharge is properly an instrument of the criminal law within Parliament’s legislative authority. That question is not in issue here and the affirmative answer provided in Crowell is, again, consistent with the conclusion that the surcharge is a penal element of a sentence that is indistinguishable from a fine. Given the precise reasons in Crowell , this conclusion is reinforced by the removal in 2013 of a discretion to waive the surcharge. [ 40 ] Fifth, the surcharge is not a form of restitution formally recognised in Canadian criminal law.

It cannot be such a form of restitution simply because the money realised in the assessment of surcharges is dedicated to a fund to assist victims of crime. This is a loose and informal use of the word “restitution” to signify a process and a mechanism by which offenders may be compelled to contribute to a fund for the benefit of victims of crime. But this is not what restitution means in Canadian law. The surcharge is not compensation for actual loss to an identified person or entity and it has nothing to do with any notion of restitutio in integrum as that concept is legally understood.

Section 738 provides that restitution may be ordered, under specific conditions, “in addition to any other measure imposed on the offender.” Unlike the surcharge it is not imposed “in addition to any other punishment imposed on the offender.” The surcharge may be ordered as a payment by the offender only to an ascertainable victim of his or her crime and only for a readily ascertainable amount. It is a specific order for compensation of a fixed loss by a direct victim. [47] Only this is restitution. Both the Code in

section 673 and

section 785, as well as the jurisprudence, [48] make plain that an order for restitution is an integral part of a sentence and that it is, within a sentence, a form of punishment. Only

section 716 distinguishes restitution from a fine. But the surcharge is not restitution within the meaning of

section 738 of the Code. The attribution of a surcharge to a fund for victims does not bring the surcharge within the

section and it does not, for the reasons given earlier, take it out of the definition of a fine. It is not without interest that even if the surcharge were construed loosely as a form of restitution, having regard only to its purpose, the Code and jurisprudence make clear that the court should take into consideration the offender’s ability to discharge the debt. [49] Further, if the alternative to non-payment of the surcharge is participation in a fine-option programme or (where there is no such programme)

imprisonment, it is nonsense to describe these mechanisms as a function of restitution within the meaning given by

section 738. [ 41 ] Sixth, the surcharge is a fine that allows in a single sentence, subject to conditions, the imposition of a term of imprisonment, a term of probation and a fine. In its written submissions the prosecution takes the position that a sentence cannot combine elements of imprisonment and probation with a fine. The textual basis for this view is the use of the word “or” in paragraph 737(1)( b ). The prosecution takes the position that this

section authorises a term of probation with imprisonment (less than two years) or a fine but not both, even if the total of both does not exceed two years. To reinforce this submission the prosecution cites several cases, including some from Quebec, in which it is affirmed that a sentence cannot include elements of imprisonment, probation and a fine – even if the total duration does not exceed two years. [50] The prosecution, it might be noted, did not refer to Cartier , rendered in 1990, where the Court of Appeal decided that a fine could be cumulated with an intermittent term of imprisonment and probation. [51] [ 42 ] The question of statutory

interpretation has never been settled by the Supreme Court and before 1996 it was the subject of some debate and some dispute in the jurisprudence. [52] The cases that prohibited the combination of jail, probation and a fine proceeded on a textual construction and, it appears, an argument of principle. The textual argument was that the word "or" in section 737(1)(

b) must be read disjunctively. The argument of principle was that this construction would avoid excess in the terms of a sentence. These two points were not accepted everywhere, however, and in some cases it was held that a proper construction of the provision would allow for all three elements to be combined, provided that the net result was otherwise just, fit and proportionate. The counter-argument has been that the use of the word “or” does not necessarily mean that a fine can only be cumulated with one or the other of imprisonment or probation.

It is equally consistent with the view that if one or the other or both of these elements are found within the terms of a sentence, a fine may be added if the totality principle and the proportionality principle are respected in the net result. [ 43 ] Although the matter was never previously settled, this compulsory element of a surcharge that must be added to any other elements in a sentence puts an end to the question whether a fine can be cumulated with elements of imprisonment and probation.

The surcharge is a fine and thus Parliament itself has concluded not only that a fine may be cumulated with other elements but that in all cases, including absolute discharges, the surcharge must be cumulated with other elements.

In short, Parliament has defined the surcharge as a fine that is a necessary element of a sentence that must be combined with any other elements and thus subject, to the degree possible, to proportionality, individualisation, totality and other general principles of sentencing. [ 44 ] For other reasons too I propose to follow the counter-argument just identified and I therefore decline to follow the jurisprudence that forbids the combination of imprisonment, probation and a fine. I do this for cogent legal reasons and not as disobedience to authority. One reason is textual. Section 737(1)(

b) states when a probation order may be imposed and says that this is permissible when the sentence otherwise imposes a term of imprisonment or a fine. It allows for probation when the elements of the sentence includes imprisonment or a fine but there is no compelling reason to conclude that probation can be cumulated with only one or the other of these two options. The rationale for the word “or” is apparent if the word “and” is substituted. It would lead to the absurd conclusion that probation could be imposed only if the sentence also contained both elements of imprisonment and a fine. To use the word “or” allows the sensible

interpretation that probation may be imposed if the other elements of the sentence include imprisonment or a fine, or both. [53] [ 45 ] As noted, the cases deciding that a sentence comprising jail, probation and a fine (if the first two elements did not exceed two years) was improper were decided long before the reform of 1996. Thus the

interpretation of paragraph 737(1)(

b) was not constrained by the principle of proportionality and the other principles and objectives since found in

Part XXIII. Since that reform occurred it is entirely possible that a sentence comprising jail, probation and a fine could be just, fit appropriate and proportionate having regard to the offence and the offender. This is the controlling point of principle.

And this principle is not diminished if the sentence includes a fine that is cumulated with imprisonment or probation, or both, provided that the first two do not exceed two years in total. [ 46 ] It must also be noted that the cases forbidding the cumulation of imprisonment, probation and a fine predate the enactment (in the reform of 1996) of section 734(1)( a ), which provides as follows: Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under

section 734.1 (

a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanctions that the court is authorized to impose. […] Except where the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this

section only if the court is satisfied that the offender is able to pay the fine or discharge it under

section 736. [54] This paragraph explicitly allows a fine to be cumulated with any other sentencing options that are available, including therefore imprisonment and probation, subject only to compliance with the principles and objectives of sentencing stated in the Code. In short, the cases relied upon by the prosecution have been overtaken by legislative amendments. Not only is this manifest in section 734(1)( a ).

Once again, if the surcharge is properly characterised as a fine that forms an integral element of a sentence, Parliament itself contradicts the outdated jurisprudence upon which the prosecution relies by compelling a fine, and thus a combination of three elements, in any case where imprisonment and probation are imposed in a sentence. [55] [ 47 ] There is some irony here. The jurisprudence relied upon by the prosecution sought to ensure reasonableness and proportionality by imposing a formal and somewhat artificial limitation.

After the amendments of 2013 the surcharge leaves open the manifest possibility of disproportionality in a mandatory fine – the surcharge – imposed upon any other punishment in the elements of a sentence. The imposition of a fine in addition to a term of imprisonment and probation (again, not more than two years) allows for a higher degree of proportionality by mitigating the effects of this mandatory minimum element. There is a further irony.

The imposition of a mandatory fine in the form of a surcharge is a plain demonstration that Parliament itself not only allows a combination of imprisonment, probation and a fine but actually requires it wherever imprisonment and probation are included among the elements of a sentence. In the absence of a discretion to waive the surcharge, only the additional imposition of a fine will preclude a disproportionate

result. Indeed, the rationale of avoiding excess is now entirely consistent with a combination of the three elements. Where jail and probation are proposed the addition of a modest fine allows for a mitigation of the surcharge. This additional element thus provides a basis to ensure, not to defeat, the proportionality of the sentence and the individualisation of its elements as appropriate for the offence and the offender. XI

Summary [ 48 ] I have concluded that the surcharge is an integral element of a sentence. As a result it is subject to the extent possible to the principles that govern the imposition of a sentence, including the principles of proportionality, individualisation and the various other principles and objectives recognised in the Code and the jurisprudence. I have enumerated and explained six principles that will govern the sentence I give in this case. For convenience I repeat them summarily.

First, the surcharge is a mandatory order that must be imposed in every case with the sentence, without consideration of the circumstances of the offence or the offender, and without regard for the offender’s ability to discharge this debt. Second, the surcharge is an integral element of a sentence. It is not extraneous to the sentence. Third, the surcharge is not only an integral part of a sentence. It is properly described as a mandatory minimum sentence because it allows no exceptions. Fourth, the surcharge is an integral element of a sentence that is properly defined as a fine.

Fifth, the surcharge is not a form of restitution formally recognised in Canadian criminal law. Sixth, the surcharge is a fine that allows in a single sentence, subject to conditions, the imposition of a term of imprisonment, a term of probation and a fine. Before turning to the terms of a sentence in this case I would like to make further observations. XII Final Observations [ 49 ] There are collateral effects to these amendments. If the offender cannot pay the surcharge, he or she may be eligible to perform community service instead if a fine-option programme exists in the province or territory.

If there is no programme, as is the case in four Canadian jurisdictions (but not Quebec), the surcharge may be discharged by imprisonment. The compulsory nature of the surcharge under the amendments means as well that there is little utility in a judicial inquiry into the means of the offender – other than to ascertain whether some alternative to payment of the surcharge will be necessary. The surcharge does not allow for distinctions between offenders with more or less means and it does not allow for distinctions between jurisdictions with or without a fine-option programme.

On any account the surcharge imposes a burden in addition to any other element in a sentence. [ 50 ] Within the measure allowed by law, the surcharge must be applied with due regard for proportionality, individualisation of sentencing and all of the principles and objectives of sentencing recognised in the Code and the jurisprudence. The absence of a discretionary waiver of the surcharge imposes a severe limit on decision-making in this regard. But the imposition of an additional fine - with imprisonment and probation of less than two years – allows some margin in which to reach a proportionate and just result.

The jurisprudence of the Supreme Court has been consistent in declaring that the principles and objectives of sentencing, most emphatically proportionality and the individualisation of sentences, must prevail. [56] [ 51 ] The surcharge now enforced by

section 737 of the Code, allows no waiver or modulation to account for the offence or the offender. There is no basis on which to believe that the calculus it imposes will yield a higher quotient of accountability among offenders. There are many grounds on which to believe the opposite. I am bound, however, by the oath and dignity of my office. I cannot disobey the law now found in

section 737. But, even in the absence of a constitutional question, I can interpret that law in a manner that best conforms in law, principle and policy to the whole of

Part XXIII and the jurisprudence of the courts. This is what I will do by imposing a sentence composed of a term of imprisonment, a term of probation and a fine. The fine will diminish the applicable surcharge that would otherwise result in a disproportionate, unfit and unjust sentence. [ 52 ] Finally, I wish to affirm that I would reach this conclusion in the case of any offender similarly situated to Mr. Cloud and not only in the case of an aboriginal offender. It follows à plus forte raison that my conclusion is appropriate for Mr.

Cloud in view of his circumstances and the directives of the Supreme Court in Ipeelee . [57] XIII Conclusion [ 53 ] I have stated my conclusion that the application of the surcharge in this case would make an otherwise reasonable joint

submission disproportionate and unreasonable. I cannot say that the surcharge is inapplicable in this case. It is applicable. As a result, I have considered various means by which to minimise its disproportionate effects on Mr. Cloud. Impose the surcharge of two hundred (200) dollars on each count and allow an extended delay. This is neither permissible nor transparent as an option. Moreover, it would extend the duration of the sentence intolerably. Impose the surcharge with no delay for payment and allow a term of five days in default but reduce the joint submission of three months by five days.

This is unacceptable to me because it is a disingenuous means of confronting the cause of disproportionality in the surcharge. It is also impermissible. [58] Reject the joint submission of three months in view of the pre-sentence custody and impose only probation and a nominal fine so as to reduce the amount of the surcharge. This is unacceptable because it would be an unprincipled and radical rejection of an otherwise reasonable joint submission.

Accept the joint submission as originally stated: imprisonment for ninety (90) days, followed by probation of twenty-four (24) months to comply with section 731(1)( b ), but add a nominal fine of five dollars ($5.00) on each count to minimise the disproportionate surcharge. For the reasons given above in

Part X of these reasons, I conclude that this is a legal sentence that directly addresses the question of disproportionality in the surcharge. Follow the preceding option but order the remainder of the imprisonment to be served intermittently and allow Mr. Cloud to make a request under section 732(2), after having given notice to the prosecution, should he wish to serve the remainder of the prison term consecutively.

The modalities of the last two options differ slightly from the terms of the joint submission in that both would add fines of five dollars ($5.00) on each count and the final option would substitute the possibility of intermittent imprisonment for the remaining eight days, taking into account custody on remand of eighty-two (82) days from 13 November 2013 until today. ORDER FOR THESE REASONS, Mr. Cloud, the sentence imposed on you today is the following, which combines imprisonment, probation and a fine, and the sentences are concurrent on the two counts: Imprisonment 1.

You will serve a term of imprisonment of ninety (90) days, from which will be subtracted eighty-two (82) days for time served in remand since 13 November 2013, leaving from today a term of eight (8) days to be served, which shall be served intermittently unless an application is made under section 732(2) of the Criminal Code . a.

If no application is made under section 732(2) , with proper notice to the prosecution, the remaining eight (8) days will be served on four (4) consecutive days between 3 February 2014 and 6 February 2014 (inclusive) and four (4) consecutive days between 9 February 2014 and 12 February 2014 (inclusive). b. For the period of intermittent imprisonment when you are not in prison, you must respect the terms of the probation order below in paragraph 2. Probation 2.

You must present yourself to the probation service in Montreal within seventy-two (72) hours of your release from prison, and you will serve a period of probation for twenty-four (24) months with the following conditions: a. Keep the peace and be of good behaviour. b. Advise your probation officer in advance of any change of address c. Advise your probation officer in advance and in writing of any change of name or employment. d. You are forbidden to be within fifty (50) metres of 1, boulevard René-Lévesque Est in the city of Montréal. Fines

3. On each of the two counts there will be a fine of five dollars ($5.00), payable within thirty days of today, and upon which you will be assessed a surcharge in the amount of $1.50 for each count. Further Orders With respect to the first count, there will be an order for the production of DNA samples in accordance with

section 487.051(1) of the Criminal Code . With respect to the first count, there will be an order of prohibition concerning the possession of any weapons for the rest of your life (

section 109 , Criminal Code ) . ____________________________________ PATRICK HEALY, J.C.Q. M me Camille Boucher For the prosecution M e Yves Vaillancourt For Mr. Cloud Date of hearing : 20 December 2013; 9 January 2014.