Upping the Ante: Crown Appeals Victim Surcharge Decision

Justice David Paciocco Photo: Ottawa Citizen

Justice David Paciocco Photo: Ottawa Citizen

The Crown has filed a notice of appeal in Ontario’s Superior Court, over Justice David Paciocco’s finding that the victim fine surcharge is not Constitutional.

Justice Paciocco had found in Ottawa Ontario Court of Justice the surcharge to be of no force or effect because it amounted to cruel and unusual punishment in the case of a homeless man convicted of nine minor offences.

Justice Paciocco held that under a “reasonable hypothetical” test, 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.

The Paciocco carefully worded 31-page decision provided a detailed analysis of the victim surcharge.

Different Courts, Different Findings

In a separate case a few months earlier, an Eastern Ontario Court of Justice appeal overturned another judge’s finding that the mandatory surcharge was not constitutional. 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 Michael appeal could provide clarity on what has become a hot-potato issue for Ontario Courts of Justice. The Superior Court’s decision would be binding on judges in the lower courts.

The mandatory surcharge was introduced last October, with Bill C-37, which amended S. 737 of the Criminal Code. It removed judicial discretion and made the victim fine surcharge mandatory. The section calls for a surcharge of $100 on each summary conviction offence, $200 for each indictable offence, or 30% of any fine. Offenders can apply for an extension of time to pay the surcharge.

Justice Paciocco found that the legislation as enacted does not achieve the results that Parliament intended and imposed a relatively harsher penalty on poor defendants.

“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 Justice Paciocco found. “It is a roving punishment.”

At trial and in the notice of appeal, the Crown argues that disproportionately posed by the surcharge could be remedied by a jail sentence on one count and probation on another, to accommodate a reduced fine.

A hearing date for the appeal has not yet been set.

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