Tinkering With Surcharges

Photo: Ontario Courts

Photo: Ontario Courts

Paralegal and SCOPE contributor Baruch Lipinsky summarizes a recent Ontario Court of Justice decision that was overturned last week.

Ontario Superior Court has quickly overturned a recent decision that found the mandatory victim surcharge unconstitutional.

An Ontario Court Justice had held that a set victim surcharge that does not take into account an offender’s personal circumstances, is unconstitutional. In Tinker v. The Queen, 2014 ONCJ 208 (CanLII), four defendants challenged victim surcharge amendments that came into effect last October.

“I find that the mandatory imposition of the surcharge does negatively impact the security of the person for the applicants before the court,” Justice Robert Beninger held. “Without regard to their personal circumstances, the surcharge must be paid within a 30- or 60-day time period. If the surcharge is not paid as required, the person in default is clearly informed that they are subject to serving a jail sentence,” he wrote on April 23, in Cobourg provincial court.

“In my view, an extended enforcement procedure for a $100 surcharge, targeting a person who has no ability to pay, is not a proceeding which enhances the criminal justice system in the eyes of the community.”

Beninger declared sections 737(1) and 737(2)(b) of the Criminal Code to be “of no force and effect.”

“The s. 737 amendment which removes judicial discretion in considering a fit sentence in all cases, without reference to sentencing principles as set out in s. 718, is a broad brush punishment which casts the widest possible net upon persons being sentenced in the criminal justice system,” Beninger found.

Beninger’s ruling was overturned May 15. Ottawa Ontario 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.

The applicants in Tinker v. The Queen, 2014 ONCJ 208, Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead, 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.

Court noted that, under the new regulations, even if the offender has no source of income, the only accommodation available is a moratorium of 30 days to pay a $100 surcharge, and 60 days to pay a $200 surcharge. Under S. 737(3), the surcharge cannot be waived and, if it is not paid within the fixed time, the applicant is subject to a jail sentence.

Tinker discusses the delicate post–Charter balance between Parliament and the courts. While Parliament has the right to create the laws, it is up to the courts to determine if they are constitutional. If the court finds they are not, the court has the authority to declare laws unconstitutional, and demand that the government rewrites the legislation in question.

The trial judge considered the constitutionality of mandatory surcharge, applying the principles in R. v. Ferguson [2008] S.C.R. Beninger also considered S. 7 of the Charter, which reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except with the principles of fundamental justice.”

Justice Beninger also considered R. v. Nur, 2013 ONCA, which addresses the “gross disproportionality standard.” While Parliament may set sentencing policy, they may not set a policy that is considered “grossly disproportionate.” In other words, the sentence has to match both the offence and the particular individual. Justice is a “sliding scale.”

The Ottawa Superior Court justice reinstated the fines against the four applicants.

The victim fine surcharge is credited toward programs that service victims of crime in Ontario.

More Information:

Courts of Justice Act

Canada (Attorney General) v. Bedford, 2013 SCC

Proportionality – Legal Word of the Day


    Baruch Lipinsky, B. A.(Hons.), M. I., is a paralegal and legal researcher. He provides legal research & writing services to both legal professionals & laypeople alike.

    Contact Baruch at:

    P: 416 919 1352 ● E: Baruch@lipinskylegalresearch.com


  1. mirjam · ·

    Where is this case? I have not been able to find that the Tinker case was appealed. It appears as though the link to the Ottawa Citizen article refers to 4 separate cases that were appealed together at the SCJ, but there was no mention of Tinker. Does anyone have a the case name?

    1. We have been unable to find that appeal, either. If anyone has access to it, I hope they can forward the citation and a link. This issue seems to be slowly gaining attention outside the Ottawa area.

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