Provincial Court Update – Latest on Surcharges, Uber Challenge

Justice David Paciocco Photo: Ottawa Citizen

Justice David Paciocco Photo: Ottawa Citizen

POA Court: Victim Surcharge Update

An Ottawa judge has upheld the federal Victim Surcharge. Justice Bruce Glass, of the Ontario Superior Court, ruled that the payment is neither a fine nor a punishment; rather, it is “merely a consequence of getting a conviction.” The case is R. v Tinker, Judge, Bondoc & Mead, 2015 ONSC 2284 (CanLII).

An Ottawa lawyer has filed an appeal of the Tinker decision. He will argue at the Court of Appeal that surcharges of $100 per summary conviction offence and $200 per indictable conviction, violate the Charter and have a disproportionate effect on low-income offenders and those with disabilities.

Justice Glass added that the victim surcharge set out in s. 737 of the Criminal Code of Canada does not fall into the category of bad law. Even if the victim surcharge was a fine or punishment, it would not be “grossly disproportionate” in the case before him, Glass found. He ordered four individuals to pay $100 for each of the charges they’ve been found guilty of.

This is the first Superior Court ruling to deal with the merits the victim surcharge. Earlier this year, another Ottawa Superior Court judge sent two cases back to Provincial Offences Court, because the Crown was not given the opportunity to respond to a constitutional challenge to the fine. Justice Julianne Parfett had told the crown and defence counsel: “For the record, I’m following the decision of Justice Paciocco in Michael and I’ve – even though I’m not bound by it, I agree with it and I am applying it.” R. v. Sharkey, 2015 ONSC 1657 (CanLII).

Trevor Brown, the president of the Defence Counsel Association of Ottawa, has said the issue of the surcharge will likely require an appellate review. Conflicting rulings have both upheld the surcharge, and found it unconstitutional. As reported in Scope last year and published at CanLII Connects, in R. v. Michael, a Provincial Court found the victim surcharge is “a roving punishment” and “cruel and unusual,” under s. 12 of the Charter.

HTA Amendment Could Help to Shut Down Unlawful Taxi Drivers

Bill 53, the Protecting Passenger Safety Act, has passed second reading. It would provide municipalities with a powerful tool in dealing with unlicensed commercial drivers, and increase the penalties for unlicensed commercial drivers to between $500 and $30,000 dollars. It provides for licence suspensions and the ability to seize vehicles. This would be a profound disincentive to unlicensed operators, a practice that has proliferated in Southern Ontario in the past year.

Toronto’s application to force the app giant Uber to follow municipal bylaws is set to be heard this month. City of Toronto v. Uber Canada Inc., 2015 ONSC 1617 (CanLII). Unlicensed and uninsured UberX drivers would be affected by the bill, whether the company’s app is shut down or not. John Fraser, the MPP for Ottawa South, proposed the bill to ensure the safety of public transportation, including taxi services.

Related: City of Ottawa Uber drivers plead guilty

New Regional Senior Justice of the Peace

Ontario has appointed a new regional senior justice of the peace to the Ontario Court of Justice.
Justice of the Peace Thomas A. Stinson has been appointed regional senior justice of the peace for the West region, effective April 22, 2015. His Worship was originally appointed as a justice of the peace in 2009. He replaces Regional Senior Justice of the Peace Bridget Forster. A regional senior justice of the peace advises and assists the associate chief justice/coordinator of justices of the peace and the regional senior judge in all matters pertaining to justices of the peace.

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