‘Roving Punishment,’ Victim Surcharge Unconstitutional, Ottawa Judge Finds

Justice David Paciocco Photo: Ottawa Citizen

Justice David Paciocco Photo: Ottawa Citizen

Mandatory fine surcharges are unconstitutional, an Ottawa judge has ruled.

In R. v. Michael, 2014 ONCJ 360 (CanLII), Ontario Court Justice David Paciocco found that the surcharge amounted to “cruel and unusual punishment.” Justice Paciocco had convicted an addicted homeless Inuit man of nine summary offences related to three separate “nuisance” incidents.

Justice Paciocco wrote that under a “reasonable hypothetical,” the mandatory victim surcharge would represent a sentence “so grossly disproportionate that it would outrage the standards of decency.” He found that Section 737 prima facie violates Section 12 of the Charter, the violation is not saved by Section 1, and the legislation is of no force or effect.

To force Shaun Michael to pay $900 in mandatory victim surcharges would be to treat Mr. Michael “more harshly because of his poverty than someone who is wealthy,” Justice Paciocco found. “It is more than merely excessive” and would be counter to principles of fundamental justice, including proportionality.

    Charter Challenge: ‘Cruel and Unusual’

Michael’s lawyer, Stuart Konyer, had argued the mandatory fine provisions violate Sections 7 and 12 of the Charter. The Section 7 challenge was not considered.

This ruling comes despite a recent Ontario Superior Court decision that upheld the mandatory surcharge provisions of the Criminal Code.

Bill C-37 amended S. 737 of the Criminal Code, removing judicial discretion and making the victim fine surcharge mandatory

An Eastern Ontario Court of Justice finding that the mandatory surcharge was not constitutional was swiftly overturned. May 15, Ottawa Superior Court Justice Lynn Ratushny found that judges cannot tinker with the new compulsory victim fine surcharge law.

Crowns had appealed cases in which Ontario Court judges in Ottawa had either refused to impose the fine, declared it an unconstitutional tax without hearing any legal argument, or granted several decades to pay.

    Eastern Ontario Judges Had Balked at Fine

Four applicants in Tinker v. The Queen, 2014 ONCJ 208, had sought personal exemptions from the provisions in S. 737. The four defendants filed a Charter Challenge to the victim surcharge amendments contained in Bill C-37, which amended S. 737 of the Criminal Code, removing judicial discretion and making the victim fine surcharge mandatory.

In considering the legislation, Justice Paciocco noted that the federal government enacted the victim surcharge to “make offenders pay for their crimes.” He referred to statements made by the justice minister last year about the legislation being introduced as a “tough-on-crime” initiatives.

Justice Paciocco wrote that the legislation as enacted does not achieve the results that Parliament intended.

“A reasonable person, properly informed, would be troubled by a provision that pursues its goals this ineffectively, and without reflecting core principles of sentencing,” the court found. “It is a roving punishment.”

    Differences of Interpretation

The Crown had asked the court to apply statutory interpretation principles to the Criminal Code sections. Justice Paciocco determined that a “substantive” analysis was appropriate. He applied several legal tests and found that, by increasing the amount of the penalty, the legislation imposes an additional punishment. The provision’s “laudable purpose” did not detract from the sections’ effect as “part of the arsenal of sanctions to which an accused may be liable.”

On the issue of cruel and unusual punishment, Justice Paciocco applied analysis suggested by R. v. Nur, 2013 ONCA 677 (CanLII). He found that, while the sentence itself was “firm but fair,” the $900 “top-up” was not. It would be among the “collateral consequences” of a mandatory fine and could impede Michael’s rehabilitation.

Exposing those who are poor such as Mr. Michael to perpetual, unsatisfied sentencing obligations also deprives them 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. He will be indebted to society, with all the stigma and stress that causes.

Justice Paciocco is a former law professor and author. A recognized expert in criminal law and procedure, and evidence, he has written more than 100 published articles and four books. He was appointed to the Ontario Court of Justice in 2011.

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