New Glasgow (Town) v. Jardine, 2018 NSPC 53

PROVINCIAL COURT OF NOVA SCOTIA Citation: New Glasgow (Town) v. Jardine , 2018 NSPC 53 Date: 2018-12-20 Docket: 8197420 Registry: Pictou Between: Town of New Glasgow v. Matthew Taylor Jardine CORRECTED SENTENCING DECISION Corrected decision: Paragraph [4] corrects a typographical error referring to c 450 of RSNS 1989; Paragraph [12] adds the clause: “another case, one better suited to Charter-grounds litigation.” Judge: The Honourable Judge Del W.

Atwood Heard: 2018: 20 December in Pictou, Nova Scotia Charge: Subsection 83(2) of the Motor Vehicle Act Counsel: Bronwyn Duffy for the Town of New Glasgow Matthew Taylor Jardine not appearing By the Court: [ 1 ] Matthew Taylor Jardine is charged in a

summary-offence ticket with failing to obey a stop sign, contrary to sub- s. 83(2) of the Motor Vehicle Act, RSNS 1989, c 293 (MVA) (case 8197420); he filed a notice of intention to plead not guilty in accordance with the

Summary Offence Ticket Regulations, NS Reg 190/2018 (the regulations). A trial was scheduled for today. [ 2 ] Prior to the trial date, the prosecutor was contacted by Mr. Jardine; they entered into an agreement that Mr. Jardine would not appear to contest the ticket, the case would get concluded by way of an automatic conviction under para. 8(15) (

a) of the

Summary Proceedings Act, RSNS 1989, c 450 (SPA), the prosecution would seek the out-of-court settlement amount and then withdraw a ticket for a related s. 100 MVA offence. [ 3 ] Relying on that agreement, Mr. Jardine has not appeared in court this morning, the prosecution has applied for an automatic conviction and has sought the out-of-court settlement amount as prescribed in

Schedule 4 of the regulations (the schedule). I have entered the automatic conviction, and the prosecution has withdrawn the second ticket. [ 4 ] The

schedule designates a violation of sub- s. 83(2) of the MVA as a Category B offence, as in s. 293 of the MVA; the regulation fixes the out-of-court settlement amount as $180, made up of a fine of $50, a prescribed costs amount of $122.50 (as set out in s. 7 of the regulation and s. 4A of the

Summary Proceedings Act, RSNS 1989, c 450 ), and a victim-surcharge amount of $7.50 (as prescribed in s. 7 of the regulations, s. 7 of the Victims Rights and Services Act, SNS 1989, c 14 (VRA), and s. 2 of the Victim Fine Surcharge Rate Regulations, NS Reg 243/89 ). [ 5 ] Last week, the Supreme Court of Canada ruled in R. v.

Boudreault , 2018 SCC 57 that the victim-surcharge provisions in s. 737 of the Criminal Code are of no force or effect, having been found in violation of the no-cruel-and-unusual-punishment protection in s. 12 of the Canadian Charter of Rights and Freedoms , and not saved by the reasonable-limits exemption in s. 1 of the Charter . [ 6 ] There is every good reason to think that the victim-surcharge provisions of the VRA are just as vulnerable to a s. 12 Charter - grounds challenge: • The VRA surcharge is a punishment; • The imposition of a surcharge is mandatory;

• A provincial surcharge would be grossly disproportionate and have disproportionate financial consequences for the reasonable-hypothetical ticketed person experiencing income, housing, or health insecurity; • Enforcement actions for non-payment give rise to the risk of detention, as the committal-to-custody provisions of para. 734.7(1)(

b) of the Code are incorporated into

summary proceedings for provincial offences in virtue of sub- s. 7(1) of the SPA ; s. 13 of the SPA, itself, comprehends imprisonment for non-payment of a monetary punishment; • There is an additional enforcement risk for non-payment of fines and surcharges arising from MVA offences: driving licenses may be subject to not being renewed, pursuant to sub- s. 269(2) of the MVA.

Loss of licence works a great hardship on struggling households, as driving one’s own car will often be the only way to minimum-wage work in rural and suburban areas not serviced by economical transit. [ 7 ] I raised this Charter issue of the court’s own motion in accordance with R. v. Tavers , 2001 NSCA 71 at para. 40 , as Mr. Jardine was not present and in an even more disadvantaged position than a self-represented party.

The prosecution, with typical fairness, did not seek to contest the issue. [ 8 ] However, this is not a Charter controversy that calls into question state action; rather, what is to be decided is statute validity. [ 9 ] This is a statutory court, with no received jurisdiction to make declaratory judgments; however, the court can rule on the s. 12 Charter compliance of a penal statute in a particular case: R. v.

Lloyd , 2016 SCC 13 at paras. 14-20 . [ 10 ] Before the court can do so in relation to a provincial statute, notice must go to the attorney general under sub- s. 10(2) of the Constitutional Questions Act, R.S.N.S. 1989, c. 89 . Notice has not been sent, given the way the matter was raised. [ 11 ] Going through that whole process would prolong the outcome here, whereas I am sure Mr.

Jardine would like to get this wrapped up quickly so that he can start the countdown on his demerit points. [ 12 ] Rather than dragging things out, what I have decided to do is this: in accordance with the Remission of Penalties Act, RSNS 1989, c 397 I will remit from the fine an amount equivalent to the prescribed victim-surcharge; the costs amount must still be imposed; the surcharge will be calculated based on the remitted amount.

This carries into effect the clear implication of Boudreault , but will leave the constitutional issue to be settled later with a full hearing in another case, one better suited to Charter-grounds litigation. JPC