Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— and —
Jordan Sypes
Before: Justice Gilles Renaud
Heard by way of: Basket Motion – Extension of Time to Pay Fine
Reasons for Judgment released on: April 25, 2019
Counsel:
Jordan Sypes — Self-represented
Judgment
Introduction
1On March 13, 2019, the applicant sought an extension of time within which to pay a $1,000 fine, together with a $300.00 victim fine surcharge, which was imposed on December 6, 2016, in respect to an offence of "care and control over .08", contrary to former section 253(1)(b) of the Criminal Code. As is invariably the case, the applicant sought this relief by means of a written application setting out his quite dire financial situation. Although granted one year within which to pay these fines, he made no payments of any kind and the reasons for this situation are discussed fully in the body of the application. In this instance, the Court rejects his request for a further extension of one year to pay the $1,000 fine, and orders that he begin to make payments of at least $50.00 on the first "working day" of each month starting June 1, 2019. In effect, if the first day of the month falls on either a weekend or a holiday, the payment must be made on the next day.
2As for the $300.00 victim fine surcharge, it is struck out for the reasons set out below. In summary, the Court concludes that the Court of Appeal for Ontario has consistently ruled that these orders are of no effect as the enabling legislation was found to be unconstitutional by the Supreme Court of Canada in the case of R. v. Boudreault, 2018 SCC 58. As will be discussed, the Court of Appeal has held that no victim fine surcharges could be collected in the future, and that all such fines paid in the past had to be refunded.
3In considering this matter, the Court found that no useful purpose would be gained by consulting the Crown Attorney for the United Counties of Stormont, Dundas and Glengarry as the issue is now beyond controversy. To tax the prosecution's office with the burden of addressing each such case (and there are hundreds of such applications each year) would be to fail to apply the lessons advanced by our highest Court in the seminal case of R. v. Jordan, 2016 SCC 27.
4Indeed, the Court is of the view that the procedure followed is consonant with the guidance put forward in R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481, as discussed ably by Justice Guy Cournoyer in his article, "Case Management Powers: From Felderhof to Jordan". Refer to pages 221-248 of To Ensure That Justice Is Done Essays in the Memory of Marc Rosenberg. Edited by B.L. Berger, E. Cunliffe and Justice J. Stribopoulos, Thomson Reuters, Toronto, 2017.
Discussion
5It will be convenient to address this controversy by means of four thematic headings in which each judgment of the Court of Appeal for Ontario touching upon this controversy is reviewed, followed by a brief examination of non-Ontario case law.
1) The Crown's Concession that the Legislation was Held to be Unconstitutional
6At the outset, the Court points to the instruction on this issue found at paragraphs 5 and 6 of R. v. J.D., 2019 ONCA 138, as penned by MacPherson, Sharpe and Tulloch JJ.A. on February 14, 2019, albeit in the context of an Appeal Book Endorsement:
5 […] The Crown concedes that the imposition of a victim fine surcharge is now unconstitutional.
6 Accordingly, the sentence appeal is dismissed, except for the portion of the sentence imposing a victim fine surcharge, which is set aside.
7Although there was no reference to the case of R. v. Boudreault, 2018 SCC 58, it is obvious that the prosecution's concession was based on that decision by our highest Court. At all events, if the legislation was ruled to be unconstitutional, no fines imposed previously can survive and all must be remitted, especially when an offender seeks an extension of time within which to pay such sums.
8Note as well R. v. Porter, 2019 ONCA 114, an Appeal Book Endorsement of MacPherson, Sharpe and Tulloch JJ.A., dated February 14, 2019, at paragraph 4: "Finally, it is conceded by the Crown that the victim fine surcharge must be set aside."
9About a week later, we note language of agreement as opposed to concession, but the result was the same in the case of R. v. Drysdale, 2019 ONCA 129, which includes these remarks, consigned by MacPherson, Sharpe and Tulloch JJ.A. on February 20, 2019: "3 The Crown agrees that the victim fine surcharge should be set aside."
10The Reasons for Decision of Juriansz, Watt and Harvison Young JJ.A. in R. v. Nicholson, 2019 ONCA 320, released two days ago, include these remarks:
"[9] Leave to appeal sentence is granted. The victim fine surcharges imposed on the appellant are set aside, with the agreement of the Crown. The appeal is otherwise dismissed."
11The Prosecution conceded this issue in a further case, as made plain by the Reasons for Decision filed in the case of R. v. Khou, 2019 ONCA 189 by Juriansz, Pepall and Lauwers JJ.A., dated March 11, 2019. As we read:
12 On the sentence appeal, we are not persuaded that the trial judge made any erroneous findings of fact. It was open to her to find the appellant played a central role in the fraud, and that he enlisted others in carrying it out. The Crown concedes that the mandatory victim fine surcharge order included in the sentence should be set aside. [Emphasis added]
2) R. v. Boudreault, 2018 SCC 58, is Dispositive of this Issue
12Leaving aside the foregoing, it will be of assistance to quote other cases in which R. v. Boudreault, 2018 SCC 58, was invoked in order to make plain that all victim fine surcharges were imposed in conformity with a fatally flawed scheme, and must be reimbursed, without any further authority being required.
13Consider firstly the Reasons for Decision in R. v. Fiddes, 2019 ONCA 27, by Simmons, Lauwers and Trotter JJ.A. [January 16, 2019] as they provide this binding instruction:
9 […] We also set aside the mandatory victim fine surcharge the trial judge had imposed: R. v. Boudreault, 2018 SCC 58. The remaining terms of the original sentence remain in full force and effect.
14A few weeks later, on January 29, 2019, Simmons, Lauwers and Trotter JJ.A. wrote the following in R. v. Wang, 2019 ONCA 61, in the context of an oral endorsement: "5 The Crown concedes that the victim fine surcharge should be set aside."
15The next case of interest is R. v. Harris, 2019 ONCA 193, decided by Rouleau, Trotter and Zarnett JJ.A., in which judgment occurred on March 12, 2019. As we read:
15 The appellant requests that, in light of the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58, the mandatory $200 victim surcharge imposed by the trial judge should be set aside. The respondent does not oppose this request. Accordingly, we set aside the victim surcharge.
16The next day, March 13th, 2019, the reserved judgment in R. v. Girn, 2019 ONCA 202, was released. Penned by Watt J.A., with the support of Hoy A.C.J.O. and Then J. (ad hoc), it concludes with these relevant remarks:
"100 I would dismiss the conviction and sentence appeals in their entirety, other than to remit any victim fine surcharge that has been paid in light of the Supreme Court's decision in R. v. Boudreault, 2018 SCC 58 […]"
17The Court wishes to pause briefly to point out that the undersigned has derived signal assistance from the judgment in R. v. Milne, 2019 ONCJ 116 in this respect, as the judgment of Beninger J. was instrumental in signaling the solution to this thorny issue.
18At all events, in R. v. Henry, 2019 ONCA 229, dated March 21, 2019, we read these remarks of Rouleau, Miller and Fairburn JJ.A. on this subject, in the context of Reasons for Decision:
"7 Finally, with respect to the victim fine surcharge, the Crown concedes that in light of the recent decision in R. v. Boudreault, 2018 SCC 58, the victim fine surcharge ought to be removed.
19Under this rubric, the case of R. v. Stockton, 2019 ONCA 300, is also of interest. Decided on April 16, 2019, by Benotto, Brown and Fairburn JJ.A, it includes these germane observations:
"4 … On consent, we would vacate the $600 victim fine surcharge imposed in light of the fact that the relevant statutory provision has been found unconstitutional: R. v. Boudreault, 2018 SCC 58."
20Noteworthy as well are the two judgments that follow, arising from other appellate courts. In the first, R. v. Ahmed, decided on March 22, 2019, the Alberta Court of Appeal held at paragraph 21: "The parties agree that the victim fine surcharge should be set aside in light of R. v. Boudreault, 2018 SCC 58. We so order." To the same effect is the judgment in Greer v. R., 2019 NBCA 25, at paragraph 4. Refer as well to Part 4 for other non-Ontario cases.
3) Simple Examples of the Victim Fine Surcharge Being Set Aside
21In the case of R. v. McWatters, 2019 ONCA 46, Simmons, Lauwers and Trotter JJ.A. produced Reasons for Decision on January 24, 2019, that included these remarks:
2 He received a total sentence of 10 years and 3 months' imprisonment in addition to pre-sentence custody credited at 4.68 years for an effective sentence of 15 years' imprisonment. An order was also made under section 743.6 of the Criminal Code recommending that the appellant serve half of his sentence before becoming eligible for parole. The trial judge also imposed the victim fine surcharge.
7 […] Finally, we agree that the victim fine surcharge should be set aside.
8 Therefore, leave to appeal sentence is granted and the appeal is allowed, but only to the extent of clarifying the section 743.6 issue and setting aside the victim fine surcharge …
22An Appeal Book Endorsement styled R. v. R.G., 2019 ONCA 135, dated February 21, 2019, under the signatures of MacPherson, Sharpe and Tulloch JJ.A. includes these direct remarks: "9 The victim fine surcharge ($1,700) is vacated."
23A further example is found in R. v. D.W., 2019 ONCA 139. MacPherson, Sharpe and Tulloch JJ.A. endorsed these remarks on February 21, 2019, in the context of an Appeal Book Endorsement: "8 The conviction appeal is dismissed. The sentence appeal is allowed, but only to the extent of vacating the victim fine surcharge."
24In the case of R. v. Omar, 2019 ONCA 221, consisting of an oral judgment released on March 19, 2019, by Watt, Hourigan and Huscroft JJ.A., we read:
"10 … Nor is any dissatisfaction expressed about any ancillary order, apart from the victim surcharge.
11 We grant leave to appeal sentence and set aside the victim surcharge, but otherwise dismiss the sentence appeal."
25Earlier, the Panel noted at paragraph 1: "[…] The usual catalogue of ancillary orders followed the convictions."
26On February 20, 2019, an Appeal Book Endorsement signed by MacPherson, Sharpe and Tulloch JJ.A. and styled R. v. Hall, 2019 ONCA 130, was released. It included these comments:
"1 The victim fine surcharge (7 fines totaling $900) is set aside. The appeal is allowed to that extent. In all other respects, the appeal is dismissed as abandoned."
27In R. v. Gaetan, 2019 ONCA 118, MacPherson, Sharpe and Tulloch JJ.A. wrote on February 15, 2019, in an Appeal Book Endorsement: "The appellant wants to abandon his appeal. The appeal is dismissed as abandoned. If there is a victim fine surcharge in the appellant's sentence (this is unclear), it is vacated." In other words, the Court was prepared to set aside such an order without even having counsel assert positively that such an order was in place.
28The appeal bearing the name R. v. Ochrym, 2019 ONCA 272, dated April 8, 2019, saw Feldman, Trotter and Fairburn JJ.A. include these comments, as found in the Reasons for Decision:
"5 Those terms remain in place together with any other orders that the sentencing judge made at the time except for the victim fine surcharge."
4) Guidance from Other Courts
29Having briefly pointed to cases from Alberta and New Brunswick at paragraph 20, the Court proposes to consider the instruction found from other levels of Court.
4a) R. v. Boudreault, 2018 SCC 58 is Dispositive of this Issue
30The first case to be examined is quite persuasive and could be quoted at length to justify fully the conclusion reached by the undersigned, without more authority. Indeed, in R. v. Napayok, 2019 NWTTC 3, Justice Malakoe provides a very well-reasoned decision setting out why the victim fine surcharge scheme no longer operates and explaining why any outstanding order directing payment of such fines is without legal effect. In light of the ability of the Court to address this issue fully and concisely, the relevant paragraphs 4 to 7 are set out below:
4 The majority decision in Boudreault struck down section 737 in its entirety, with immediate effect. It declared that the victim surcharge as authorized by section 737 was a cruel and unusual punishment contrary to section 12 of the Charter of Rights and Freedoms. The Crown did not seek to justify or "save" section 737 pursuant to section 1 of the Charter.
5 The Court in Boudreault did not direct how the Court should deal with offenders who were subject to victim surcharges and for whom the appeal period had passed. The Court suggested, at paragraph 109, "that a variety of possible remedies exist" for such persons, including by way of an application under section 24(1) of the Charter.
6 In its factum, counsel for Ms. Napayok outlines five arguments in favour of the proposition that enforcing payment of the surcharges would be illegal and unconstitutional:
First, the Supreme Court has struck down section 737 as unconstitutional. Pursuant to section 52 of the Constitutional Act, 1982 any law which is contrary to the constitution is "of no force and effect". There is simply no longer a law in force in Canada which permits a court to make an order for payment of a victim surcharge penalty. As section 737 was struck down in its entirety, there is also no longer a legal means by which to enforce any orders previously made: subsection 737(9) had adopted the enforcement mechanisms applicable to fine orders to the situation of the surcharges but that provision has also now been struck down.
In a democracy governed by the Rule of Law, it is a most basic proposition that punishment -- or any other form of state action against an individual -- must be authorized and permitted by law. Simply put, there is no longer a law in Canada which authorizes or permits any enforcement of a previously-issued surcharge order.
Second, in the specific context of the criminal law, the constitutional principle just stated finds statutory expression in section 6(1)(b) of the Criminal Code. That provision provides that only punishment prescribed by the Code itself (or any other authorizing enactment) is to be imposed upon conviction. As of December 14, 2018, the Criminal Code no longer provides for imposition or enforcement of a victim surcharge penalty.
Third, as a statutory court, the Territorial Court of the Northwest Territories may only act where authorized by law. It does not have inherent authority or jurisdiction. Therefore, with the striking down of section 737, this Court has lost any power to impose, or to enforce, an order for payment of the victim surcharge.
Fourth, to now seek to enforce a penalty for which there is no legal foundation would also be contrary to the "principles of fundamental justice" contemplated by section 7 of the Charter. There can be no issue, it is submitted, that the requirement for a proper foundation in law of any penalty or punishment is one of, if not the most basic foundational principles of our legal system. Furthermore, the steps which could have been taken against a non-paying offender under section 737 prior to December 14, 2018 included imprisonment (subsection 737(9) and section 734) so the liberty interest of the subject is clearly engaged.
Finally, as the Supreme Court noted in paragraphs 106 and 107 of Boudreault, for a court to take any enforcement measures against a person previously ordered to pay the surcharge would put the court itself in the position of continuing the infliction of a punishment which is cruel and unusual, contrary to section 12 of the Charter.
7 The Crown is not contesting Ms. Napayok's application. I accept and adopt the above-noted arguments submitted by her counsel.
31The Court went on to state in terms of the issue of a remedy:
9 In providing a remedy to Ms. Napayok, my remarks are specific to the victim surcharges which were imposed under section 737 of the Criminal Code as it read on December 14, 2018. To be clear, these remarks do not apply to victim surcharges imposed under section 737 of the Criminal Code prior to October 24, 2013; nor under the Territorial legislation, the Victims of Crime Act, R.S.N.W.T. 1988 c.9 (Supp.); nor under section 53 of the Youth Criminal Justice Act.
10 I note, in passing, that section 737 of the Criminal Code applied only with respect to offences under the Criminal Code and the Controlled Drugs and Substances Act. Accordingly, the victim surcharges imposed on an adult offender with respect to a violation of section 137 of the Youth Criminal Justice Act would appear to be invalid.
11 In my view, it would be contrary to the Charter to enforce the orders for payment of victim surcharges against Brittany Napayok. Accordingly, I declare that effective immediately, the orders for these victim surcharges, in the amount of $935.00, are not enforceable and I direct the Clerk of the Territorial Court to take no action to enforce payment.
32In R. v. Kowtak, 2019 NUCJ 3, Justice Charlesworth wrote:
48 The Justice of the Peace also applied the mandatory victim fine surcharge. The victim fine surcharge is no longer payable. The appellant's appeal was heard after the Supreme Court of Canada released R v Boudreault, 2018 SCC 58, which declared victim fine surcharges unconstitutional with immediate effect, therefore, she is eligible to and shall have the victim fine surcharge removed from her sentence.
4b) Courts May Now Waive the Surcharge as a Matter of Discretion
33R. v. Dunbar, 2019 NSSC 96, sets out how this line of cases is to be understood:
77 The sentencing Judge also imposed a victim fine surcharge ("VFS") upon Ms. Dunbar, allowing her five years within which to pay it. Given that I now have the ability to do so, on the basis of R. v. Boudreault, 2018 SCC 58, (a decision which was handed down after the sentencing judge's decision in this case) I will waive the imposition of the victim fine surcharge. Ms. Dunbar's present financial circumstances are such that she would incur significant hardship if the VFS were to remain extant.
34The same conclusion was reached in R. v. Alas, 2019 NSSC 68: "28 Given that it would impose undue hardship, given the period of imprisonment to which you will be subject and the recent case authorities which have in effect restored my ability to do so, I will waive the imposition of the victim fine surcharge." See also paragraph 11 of R. v. Scordino, 2019 ONSC 1977.
4c) The Scheme is No Longer Valid
35Note R. v. Blumenthal, 2019 NSSC 35, a judgment of Chipman J., at paragraph 36: "The Victim Fine Surcharge provision has been declared invalid as of December 14, 2018 and should not be imposed: R. v. Boudreault, 2018 SCC 58." In R. v. Pijogge, 2019 NLSC 15, Knickle J. wrote at paragraph 59: "Given the recent decision of R. v. Boudreault, 2018 SCC 58, there will be no victim fine surcharge." In the case of R. v. Rich, 2019 NLSC 37, Knickle J. endorsed the same comments at paragraph 49, as did the Court at paragraph 63 of R. v. Murphy, 2019 NSSC 77, and the Court in R. v. Joyce, 2019 NLSC 77 at paragraph 55. See as well R. v. Gill, 2019 BCSC 465, at paragraph 47.
36In this vein, the Court concludes by noting that in R. v. Chand, 2019 BCSC 547, the Court remarked at paragraph 10 that the prosecution was seeking a victim fine surcharge, which was not allowed.
Conclusion
37In the result, the Court concludes that the victim fine surcharge imposed in this case was imposed in application of an unconstitutional provision of the Criminal Code and it is directed to be set aside and no enforcement measures may be undertaken at any future time. As noted by Justice Malakoe in R. v. Napayok, 2019 NWTTC 3, at paragraph 5: "The Court in Boudreault did not direct how the Court should deal with offenders who were subject to victim surcharges and for whom the appeal period had passed. The Court suggested, at paragraph 109, 'that a variety of possible remedies exist' for such persons, including by way of an application under section 24(1) of the Charter." In the Court's considered opinion, this is a valid procedure in light of the absence of any factual or legal controversy, and the most expeditious, uncomplicated and inexpensive means of ensuring a proper remedy to the applicant.
Released: April 25, 2019
Signed: Justice Gilles Renaud