Julie Bourgeois

The Crown appealed a decision of the Ontario Court of Justice that declared the mandatory victim surcharge under s. 737(1) of the Criminal Code unconstitutional as cruel and unusual punishment under s. 12 of the Charter.

The accused, who pleaded guilty to multiple offences and was indigent with mental health and addiction issues, argued that the mandatory surcharge imposed a crushing financial burden.

The Superior Court agreed that the surcharge constitutes punishment for Charter purposes but held that the evidentiary record was insufficient to establish that the surcharge was grossly disproportionate.

The court emphasized the high threshold for s. 12 violations and the availability of statutory mechanisms such as extensions of time to pay.

The appeal was allowed and the surcharge was ordered imposed.

Two accused were jointly tried for multiple offences arising from a home invasion in which one perpetrator posed as a pizza delivery driver to gain entry and threaten the occupants with a handgun while another attempted to duct-tape one victim.

Fingerprint evidence connected both accused to a pizza box used as a decoy, and the court considered whether that evidence, together with eyewitness descriptions, proved identity beyond a reasonable doubt.

The court held that the cumulative evidence established that one accused was the intruder carrying the pizza box and handgun.

However, the Crown failed to prove beyond a reasonable doubt that the handgun was a real firearm within the meaning of the Criminal Code where the weapon was not recovered and eyewitness observations were limited.

The court also addressed the Kienapple principle and found no legal nexus between robbery and attempted unlawful confinement, allowing separate convictions.

Convictions were entered for break and enter, robbery, and attempted unlawful confinement, with several firearm-related counts resulting in acquittals.