Same courthouse, different decision.
An Ottawa judge has ruled the contentious victim fine surcharge constitutional, just days after another judge in the same court found the Criminal Code section violates the Charter of Rights and Freedoms section against cruel and unusual punishment.
R. v. Javier, 2014 ONCJ 361 (CanLII) was released Aug. 6. Represented by duty counsel, the defendant asked the Ottawa Ontario Court of Justice last week to waive the mandatory victim surcharge under s. 737 of the Criminal Code. Counsel referred to another recent decision in the same court – R. v. Michael 2014 ONCJ 360 (CanLII), 2014 ONCJ 360 (CanLII) – and the earlier R. v. Tinker  O.J. 2056 (O.C.J.). Each had declared the victim surcharge provisions under s. 737 to be of no force and effect, although Tinker had been overturned on appeal.
In R. v. Michael the court found that the imposition of the mandatory victim surcharge constituted cruel and unusual punishment contrary to s. 12 of the Charter.
The defendant in Javier had pleaded guilty to one count of possession of crack cocaine. Justice Robert Wadden determined that an appropriate sentence was one day jail in addition to presentence custody.
The justice noted that Section 737 of the Code requires a court to impose a victim surcharge “in addition to any other punishment imposed,” in the amount of 30% of any fine imposed, or $100 for each summary conviction offence. In the Michael case, that would have amounted to a $900 surcharge, as the defendant was convicted of separate, summary conviction offences.
While Justice Paciocco in Michael could have imposed a fine of $1 on each count, he conducted the required hypothetical analysis. Justice Paciocco concluded that a judge who was required to sentence an offender on multiple counts to both jail and probation in the hypothetical would be prevented from imposing a fine.
Flexibility is possible, Justice Wadden found:
Justice Wadden noted that the case before him was not “thoroughly litigated” and that his reasons apply only to Javier case.