Her Majesty the Queen v. Michael

[Indexed as: R. v. Michael]

Ontario Reports

Ontario Court of Justice

Paciocco J.

July 31, 2014

121 O.R. (3d) 244 | 2014 ONCJ 360

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Mandatory victim surcharge in s. 737 of Criminal Code constituting "punishment" — Imposition of victim surcharge totalling $900 on indigent alcohol- and drug-addicted Inuit street person grossly disproportionate — Gross disproportionality avoidable if nominal fines could be imposed — Section 737 producing gross disproportionality in reasonable hypothetical case where fine would be illegal as jail sentence and probation order had to be imposed — Section 737 unjustifiably violating s. 12 of Charter and being of no force or effect — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 737.

Facts

The accused, a 26-year-old Inuit street person, was convicted of nine offences, including assault, mischief and breaching court orders. He had an extraordinarily difficult upbringing, was an alcoholic and drug addict, and had a related criminal record. Under s. 737 of the Criminal Code, he faced a victim surcharge of $100 for each offence. He was on social assistance, receiving a street allowance of $250 per month, and the total surcharge of $900 was well beyond his means. He brought an application challenging the constitutionality of s. 737 of the Code.

Decision

Held, the application should be granted.

The accused's offences involved a similar pattern in which he became intoxicated, became a nuisance, and when he lashed out after being approached, he committed minor assaults or damaged property. He had repeatedly been subject to court-ordered conditions, which he routinely breached. The accused's offences all fell at the lower end of the scale. For the first seven charges, he received a suspended sentence and two years' probation, in addition to the equivalent of 93 days of pre-trial custody. For the remaining two charges, he was sentenced to 18 days' incarceration on each charge, concurrent, in addition to the equivalent of 12 days of pre-trial custody. No probation order was imposed on those charges.

The victim surcharge in s. 737 of the Code constitutes "punishment" for the purposes of s. 12 of the Canadian Charter of Rights and Freedoms. A victim surcharge of $900 would be grossly disproportionate as applied to the accused. It was a crushing amount for him and was, in terms of relative hardship, many multiples of what a moneyed offender would have to pay. If the sum was collected, even after time to pay had been granted and even if his circumstances improved, it would impose significant financial hardship on him. It would also impose stresses on him that were apt to challenge his opportunity for rehabilitation and would delay his reintegration into society and delay his ability to apply for sentence remission. If he was unable to pay indefinitely, the law would not incarcerate him for non-payment, but he would be left under the stress of potential incarceration. While it created those hardships for the accused, the impugned provision failed to achieve universal accountability in the case of offenders who cannot pay. If the purpose of the legislation was the more modest one of preventing judicial abuse of the "undue hardship" exemption in s. 737, it could have been achieved in a less obtrusive fashion. A reasonable person, properly informed, would find the accused's punishment to be so excessive as to outrage standards of decency.

Gross disproportionality could be avoided in the accused's case by imposing a nominal fine, thereby reducing the victim surcharge to 30 per cent of the fine. While s. 731(1)(b) of the Code, as currently interpreted by binding authority in Ontario, prohibits judges from imposing fines for charges that are being sentenced by a combination of incarceration and probation, the accused received probation but no jail time for the first set of offences and jail time but no probation for the second set of offences. Section 737 could produce gross disproportionality in the reasonable hypothetical case of an offender exactly like the accused who was required, by the application of general sentencing principles, to receive both a jail term and probation. In those circumstances, s. 737 would violate s. 12 of the Charter. It would be impossible to justify a s. 12 violation under s. 1 of the Charter. A grossly disproportionate law cannot satisfy the proportionality test. Section 737 was of no force or effect.

Judgment

PACIOCCO J.:

I. Introduction

[1] I convicted Mr. Shaun Michael, an alcoholic and drug addicted 26-year-old Inuit street person, of nine separate offences, occurring on three occasions. All offences share the same pattern. Mr. Michael becomes grossly intoxicated. He then becomes a nuisance. When he is approached, he lashes out, committing minor assaults or damage to property. Since he is perpetually on court-imposed conditions when he does these things, he commits breaches of court orders, compounding the charges. Mr. Michael faces a victim surcharge of $900 as a result of these nine offences, a supplemental punishment over and above other punishments I imposed to address the goals of sentencing. The surcharge is currently well beyond Mr. Michael's means. Mr. Michael is unemployed and is temporarily residing with his aunt when not on the street or in the shelter. He is on social assistance, receiving a street allowance of $250 per month. He argues, through his legal representative, Mr. Konyer, that imposing these surcharges on him is unconstitutional. He says that doing so violates both ss. 12 and 7 of the Canadian Charter of Rights and Freedoms, and cannot be saved under s. 1. This is my decision on that constitutional challenge.

II. The Section 12 Challenge

[2] Section 12 of the Charter assures everyone that they have "the right not to be subjected to cruel and unusual treatment or punishment". Mr. Konyer, for Mr. Michael, argues that the victim surcharge is a "punishment" within the meaning of s. 12, and that this punishment is grossly disproportionate in his circumstances, or as tested through reasonable hypothetical cases. The Crown, represented by three lawyers, urges that the victim surcharge is not a "punishment" but a "treatment", which requires a diluted form of Charter scrutiny that Mr. Michael cannot overcome. It contends that even if the surcharge is a "punishment", that punishment is not "cruel and unusual" within the meaning of the law. The place to begin is by determining whether the victim surcharge is a "punishment" within the meaning of s. 12 of the Charter.

A. Is s. 737 a "punishment"?

[3] The burden of establishing a Charter breach on the balance of probabilities is, of course, on the claimant. It is convenient, however, to evaluate this issue by addressing the comprehensive submissions made by the Crown.

[4] The Crown invokes the principles of statutory interpretation to assist its claim that the victim surcharge is not technically a punishment. In my view, the determination of whether something constitutes punishment is a question of characterization, not statutory construction. Statutory construction is the process used in interpreting legislation as enacted, in an effort to capture legislative intention. While legislative intention does have a role to play in characterizing whether a provision creates a punishment and while a court must necessarily interpret a provision sufficiently to recognize its character, whether something is a punishment is ultimately a matter of substance.

[5] In my view, this issue of substance can be resolved quite simply. Incarceration and fines are the two paradigmatic forms of punishment: R. v. Wigglesworth, [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, at p. 561 S.C.R.; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, at para. 59. In Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, [2014] S.C.J. No. 20, the Supreme Court of Canada reasoned without more that given this, a provision that increases the period of incarceration to be served is necessarily a punishment. The same holds true, in my view, for a provision like s. 737 of the Criminal Code, R.S.C. 1985, c. C-46, which enhances the amount of any fine that must be paid. How can a fine be a paradigmatic example of punishment, yet a provision adding 30 per cent to the amount of a fine not be a punishment? It does not matter what an enactment names the provision. If it increases the amount of a penalty by way of fine, it is, in my view, a punishment.

[6] Mr. Mack, for the Crown, urged me not to apply the Whaling reasoning because it recognized Rodgers to provide the appropriate test for identifying whether consequences imposed during the sentencing process are punishments. What the Whaling court was communicating when it made this point, however, is that the Rodgers test was designed to identify when consequences imposed during the sentencing process are punishments, and therefore functions appropriately in that context, even though the Rodgers test did not fit the issue in Whaling, which was whether a retroactive change to parole eligibility was a punishment. Whaling does not hold that courts are not to recognize that a provision enhancing one of the paradigmatic punishments is itself a punishment unless the Rodgers test produces the same result. Simply put, it makes no sense to require a long route to arrive at a short and obvious destination.

[7] In any event, even if the more laborious analysis invited by R. v. Rodgers, supra, is applied, the outcome is the same. The two-part test identified in that case, at para. 63, holds that, "[a]s a general rule, . . . the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of the particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing". The Crown contends that neither component of the test is met here -- it is not part of the "arsenal of sanctions" nor was it enacted "in furtherance of the purposes and principles of sentencing". Accountability, the Crown urges, is an ancillary purpose the way that the deterrent effect of the infamy of registration under SOIRA or being added to the DNA bank are ancillary effects of those orders.

[8] I will deal with this second point first because it is simpler. I agree that the funds raised by the victim surcharge are to be used for the laudable purpose of providing important victim services. Section 737(7) says as much. Equally central if not more central to the purpose of the provision, however, is how this is to be done -- by holding offenders accountable for those costs. This is self-evident from the text of the provision, which instructs that only offenders pay the victim surcharge and that they do so as part of the sentencing process. Although the Crown has appropriately warned that courts are to be cautious in using extrinsic evidence from Parliamentary proceedings and the title of an enactment, the Increasing Offender's Accountability to Victims Act, S.C. 2013, c. 11, all extrinsic sources confirm that the victim surcharge was enacted to make offenders pay for their crimes. Relevant documents are riddled with proclamations from government officials, including the Minister of Justice, situating this legislation among tough on crime initiatives and lauding its capacity to assist in deterring offenders and holding them accountable for their offences. These comments cannot be dismissed as political puffery intended to mislead the public about the function of the legislation nor are they untutored comments. They represent official proclamations in formal settings offered by senior officials that are reflected in, and confirmed by, the structure of the enactment. This proclaimed purpose, holding offenders to account, falls squarely within the purposes of sentencing contemplated in Rodgers, and found in s. 718 of the Criminal Code. Those purposes include, most notably, "providing reparations for harm done to victims or to the community", and "promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community". Section 737 is intended to further these goals by making offenders pay. This is why s. 737 was passed and then amended, and it is what s. 737 purports to do. Section 737 meets the second leg of the Rodgers test.

[9] The first part of the Rodgers test, "that it forms part of the arsenal of sanctions to which an accused may be liable in respect of the particular offence" is also manifestly satisfied. Section 737 is not a self-standing provision distinct from the arsenal of sanctions surrounding it in Part XXIII of the Criminal Code, as the Crown contends. The indications to the contrary are too compelling to sustain this contention.

[10] First, although I am mindful not to exaggerate the impact of titles, the victim surcharge provision is found in the "Fines and Forfeiture" section of the Criminal Code. More importantly, s. 737(1) begins by noting that it is to be imposed "in addition to any other punishment imposed on the offender". By inserting the word "other", Parliament was being direct, in my view, that it was creating an additional punishment. The Crown counters that s. 737 must not be a "fine", otherwise why would Parliament need to incorporate some of the fine provisions by reference through s. 737(9)? There is some mileage in this submission, but there are two cogent responses. First, the fact that the victim surcharge is integrated in this way with other punishment mechanisms plays against the inference that s. 737 stands as an island, distinct from the punishment provisions that surround it. Second, there are opposing, compelling indicators that the victim surcharge is in fact a fine.

[11] A most persuasive indication that the victim surcharge is a fine is the very definition of "fine", found in s. 716. That provision defines a "fine" as including "a pecuniary penalty or other sum of money, but does not include restitution". The victim surcharge, a sum of money, is not easily described as "restitution".

[12] First, the Criminal Code uses "restitution" as a term of art. It is found in the heading to s. 738(1)-(2), and throughout those provisions. Meanwhile, the word restitution appears nowhere in s. 737. Second, s. 716 was enacted in 1999 -- four years after victim fine surcharges were legislated. Obviously, if Parliament intended the "restitution" exception to include victim fine surcharges, it would have either described the surcharge as "restitution" or used a clear term in the exception part of the fine definition that would encompass the victim fine surcharge.

[13] The reason Parliament did not take steps to describe the victim surcharge as "restitution", and therefore exempted from the status of a "fine", strikes me as obvious. A victim surcharge shares none of the characteristics of "restitution". The legal concept of restitution originated in the Roman law as "restitutio et integrum", which requires restoration of the status quo. The hallmarks of restitution are that it involves payment to the victim equivalent to the loss caused in order to return to the status quo: R. v. Cloud, [2014] Q.J. No. 513, 2014 QCCQ 464 (Ct. of Quebec (Crim. & Pen. Div.)). The victim surcharge does no such thing. It requires the payment of money to the State, to be spent at the discretion of the State, to assist victims in a range of ways. There is no relationship between the payment an offender makes and the provision of benefits to their victim, if there even is a victim.

[14] In support of its position the Crown relies on the decision in R. v. Crowell, [1992] N.S.J. No. 380, 76 C.C.C. (3d) 413 (C.A.). First, the ratio of R. v. Crowell is its conclusion that the victim fine surcharge, as it then was, was not a tax. Any reference linking the victim fine surcharge to restitution was obiter dictum in that case, uttered by a court that did not have to come to a formal characterization of the juridical nature of the victim fine surcharge to resolve the case. It was enough to dispose of the litigation to find it was not a tax. Moreover, I agree with Mr. Mack, for the Crown, that even when the court referred to the concept of restitution this obiter dictum was not a definitive expression that the victim fine surcharge was restitution per se. When the Crowell court described the pre-amendment form of s. 737 as "a unique penalty in the nature of a general kind of restitution", it was struggling to characterize it given that a victim fine surcharge, legally, is idiosyncratic -- a novel form of sanction. Third, Crowell has since been overtaken by legislation. It is not at all clear that the 1992 decision would have offered the same conclusion, that the victim surcharge is not a fine, had the court had the benefit of the definition of "fine" now in s. 716, passed in 1999.

[15] Finally, the Crown urged that Parliament signalled its intention that the victim surcharge is not a fine in 1999 by deleting the word "fine" from "the victim fine surcharge" to create the new "victim surcharge" label. In my view, that amendment offers little instruction. It is equally consistent with the word "fine" having become unnecessary given that s. 716 was added the same year to describe monetary sums other than restitution as "fines". An equally plausible explanation was offered by the parliamentary secretary to the Minister of Justice, the Hon. Ms. Kerry-Lynne D. Findlay to the House of Commons, that the term "fine" was "dropped to avoid the interpretation that [the surcharge] was only applied in addition to fines". Ultimately, the deletion of the word "fine" does not overcome the definition in s. 716. I think the victim surcharge is a fine.

[16] In the end, it does not matter to the instant analysis whether s. 737 is a fine per se. However it is styled, it functions in substance like a fine. It is a sanction imposed on offenders for having committed offences by depriving them of their funds. Moreover, the amount of the surcharge is directly tied to the value of any fine imposed pursuant to s. 734(1), and can be increased pursuant to s. 737(3) if the sentencing judge decides, enhancing the sentencing experience. And much of the administrative structure developed for fines is incorporated by reference into s. 737. To be sure, all of the counsel before me described the victim surcharge as a square peg that does not fit easily into the round holes familiar to the criminal law and I agree. Even if this makes the victim surcharge a sui generis tool such that it is not a true fine, it is clear to me that s. 737 is "part of the arsenal of sanctions to which an accused may be liable in respect of the particular offence".

[17] The victim surcharge therefore qualifies, in my view, as "punishment". This is so even though the victim surcharge does not behave like familiar punishments because it applies universally, it is impervious to many of the ordinary principles of sentencing, it is incongruous to apply a punishment other than probation to discharges, it does not sit well with the conventional interpretation of s. 731(1)(b) which prohibits a "fine" from being used if both probation and jail are imposed, and the ability to pay is not required as it is for fines levied under s. 734. The ill fit of the victim surcharge with the familiar principles of sentencing and other sentencing provisions is not a reason to disregard what it, in substance, does. This ill fit, is, however, the reason why this s. 12 Charter challenge has been brought by Mr. Michael. He says that this punishment is, in his case, cruel and unusual treatment or punishment, and that if that is not so in his case it is so in the case of a reasonable hypothetical person.

B. Does s. 737 require "cruel and unusual" punishment?

[18] Before a punishment contravenes s. 12, it must be "more than merely excessive". The punishment must be "so beyond what would be proper or proportionate punishment as to be grossly disproportionate". It must, in degree, be "so excessive as to outrage standards of decency": R. v. Nur (2013), 117 O.R. (3d) 401, [2013] O.J. No. 5120, 2013 ONCA 677, paras. 64-66. This is a halting standard, intended to reflect deference to Parliament's legislative authority.

[19] "A claim that a mandatory minimum sentence constitutes cruel and unusual punishment is tested in two ways. First, a court must decide whether the punishment is grossly disproportionate as applied to the accused before the court. This particularized inquiry asks whether the mandatory minimum is grossly disproportionate punishment for the particular accused in the particular circumstances. If the sentence survives this particularized inquiry, the court goes on to decide whether the sentence is grossly disproportionate when applied to reasonable hypotheticals . . .": R. v. Nur, supra, at paras. 75-76.

1. Does the "particularized inquiry" establish a breach in Mr. Michael's case?

[20] In R. v. Nur, supra, at paras. 67-68, the court set out a method of evaluating whether the punishment is grossly disproportionate as applied to the accused before the court. This inquiry ordinarily "demands a comparison of the minimum penalty required by the challenged statute with what would be regarded as the appropriate range of sentence for the same offence committed by the same offender but for the challenged mandatory minimum": R. v. Nur, supra, at para. 67. The determination of whether the discrepancy between the two renders the sentence grossly disproportionate is then to be undertaken, using appropriate standards and factors identified in the decision.

[21] In my view, this mode of analysis is not optimal given that this challenge is to the victim surcharge, a universal punishment that is added to the other punishments imposed by the judge, regardless of the offence or the offender. The issue can therefore be stated more directly. Is the victim surcharge penalty grossly disproportionate when applied to this offender in these circumstances? I will nonetheless structure the analysis using the considerations identified in Nur as they do encourage a complete consideration of all relevant factors.

(a) The minimum penalty at stake

[22] The place to begin, then, is with identifying the minimum penalty at stake. Mr. Lalonde, for the Crown, urged that this would be $100, the mandatory victim surcharge for a summary conviction offence that would apply to each of Mr. Michael's convictions. Mr. Lalonde suggested that I must approach the issue in this way because compounding the victim surcharge would exaggerate the penalty under scrutiny. Parliament set a modest amount -- $100 -- for summary conviction offences and this should not be lost sight of.

[23] While I agree that I cannot disregard the fact that the penalty is $100 per offence, I must also remain focused on the fact that Mr. Michael faces sentencing on nine charges, producing a total victim surcharge of $900. The issue before me relates to the proportionality of his sentence, and when a sentencing judge is dealing with the overall sentence for multiple counts, the principle of totality must be respected precisely to prevent the cumulative effect of each individual sentence from producing disproportionately harsh consequences. It would not give a true picture of things to hive each penalty off, lessening the burden that is in fact being imposed on Mr. Michael. I propose to consider the disputed sentence to be $900, which is sought to be imposed in addition to the other punishment for the offences in question, namely, a little over four months in custody, and probation for two years on rehabilitative conditions, the details of which I will provide below.

(b) The appropriate range of sentence

[24] Determining the appropriate range of sentence requires a close examination of the facts in light of the principles of sentencing. The Nur court identified a number of factors courts are to consider during the overall analysis, several of which reflect the factual inquiries needed to drive the sentencing evaluation, including the gravity of the offence reflected in the statutory provision creating the offence, the specifics of the offence and the personal characteristics of the offender. The seriousness of the offence must then be characterized and a comparison of punishments imposed for similar or related offences undertaken to identify the appropriate range of sentences.

Factor 1 -- "The gravity of the offence"

[25] When it comes to the victim surcharge, there is an analytical complication when assessing the "inherent gravity of the offence", or "the gravity of the offence reflected in the statutory provisions creating the offence". As indicated, an important feature of victim surcharges is that the surcharge is not tied to particular offences. It applies to all offences. The focus when undertaking the particularized inquiry under s. 12 must therefore be on the specific offences committed by the offender. Mr. Michael is being sentenced for three general categories of offence, three assault-related charges including two involving peace officers in the course of their duties; one mischief charge; and four counts involving breach of orders regulating his behaviour.

[26] For its part, assault is a serious offence because it serves a crucial role, protecting the physical integrity of persons. A simple assault, however, does not require harm, a typical hallmark of more serious offences: R. v. Nur, supra, at paras. 73-84. It carries a six-month penalty on a summary election, the lowest sentencing range provided for in the Criminal Code. Nor does this offence require a high degree of moral culpability. Even though it requires intention, one of the most guarded forms of mens rea known to law, assault is a general intent offence that can be committed without reflection by lashing out impulsively. The law assumes that this level of intention is so basic, even primal, that it is not even conceivable that a person can become so intoxicated as to be incapable of forming it. In my view, the mens rea for an assault is not one that signals a high degree of moral fault. To help put things into perspective, one of Mr. Michael's offences is a summary prosecution for a simple assault and while this category of offence should never be trivialized, it is a common form of offence often resolved with non-custodial dispositions.

[27] Two of the assaults committed by Mr. Michael were against peace officers in the execution of their duty. This category of offence is treated as an aggravated form of assault offence even though harm is not an element of the offence. This offence involves conduct that not only targets peace officers who perform an inherently dangerous role, but it also serves to impede the proper administration of justice. While generalizations are of modest assistance, as a generalization this is a mid-range category of offence that calls for denunciation and general deterrence. When it is a summary prosecution, as here, however like simple assault, it carries the lowest form of penalty known to the Criminal Code.

[28] Mischief by damaging property under $5,000, contrary to s. 430(1)(a), is, in relative terms, at the lower if not the lowest end of the criminal spectrum. This is so even though the offence requires proof of harm. That harm is not to people, but to property or its use or enjoyment. The level of moral fault required is low. It too is a general intent offence and can even be committed without the desire to cause damage, where the accused saw the risk that damage was likely and went ahead. Mischief is often resolved criminally by diversion and restitution.

[29] Breach of orders designed to regulate the behaviour of offenders, such as probation orders (s. 733.1) and recognizance orders (s. 145(2), (3)), are significant because such terms are put in place to secure the public peace, including by rehabilitating the offender. Their breach frustrates the administration of justice. Having said this, breach offences can be prosecuted even where they cause no harm to anyone, and do not involve a heavy degree of moral culpability. This is reflected in the fact that a summary charge of breaching a recognizance carries the lowest possible penalty known to the criminal law, while summary breaches of probation can attract up to 18 months' incarceration. Moreover, breaches come in different shapes and sizes. They range from the continued harassment of a victim, which can be extremely serious, to the failure to look for a job, which is manifestly less serious. Mr. Michael breached a condition to keep the peace, for example. This form of breach is typically triggered by the commission of another offence. The breach itself is prosecuted because it represents a generic disregard for court orders, but in sentencing it tends to be treated much like an aggravating factor relating to the substantive offence. Meanwhile, breaches of alcohol abstinence conditions imposed on addicted offenders tend not to be treated as serious, even though the implications of drinking for the accused can be devastating. Many judges will not impose such conditions, reasoning that given the immediacy and power of an alcohol addiction breaches can almost be expected, even among those who are trying to comply. Some see it as ordering the impossible and bear this in mind when imposing sentence. One of the breaches Mr. Michael is being sentenced on is of this ilk. Breaches of address notification, the third type of breach Mr. Michael's committed, vary in seriousness, depending on the degree to which they frustrate the efficacy of the relevant order. For some offenders, it is the result of personal disorganization. For others, it is the product of disdain for the probation order or even a desire to avoid being found.

[30] In general terms, the categories of offences Mr. Michael is being sentenced for are all lower-end offences. They tend to carry the lowest penalty range available in the criminal law, with the most serious being summary prosecutions for assaults committed against peace officers. All of Mr. Michael's offences deserve punishment, but, in relative terms, Mr. Michael is not charged with serious crimes.

Factor 2 -- "The particular circumstances of the case"

[31] Without in any way trivializing them, the particular circumstances of the offences committed by Mr. Michael reveal his crimes to be, in relative terms, lower-end offences even within the lower-end categories of offences I have described.

[32] On January 2, 2014, Mr. Michael stole a bottle of alcohol from the LCBO, while extremely intoxicated. He resisted the loss prevention officer when in custody after being arrested, kicking him in the leg. He then lashed out at the police who came to assist, assaulting a peace officer by kicking at him when the officer was taking control, striking the officer in the leg. His offences were in the nature of a tantrum. No one was hurt and the liquor was recovered. Mr. Michael was overpowered and put in a temporary restraining device and spit hood. On May 2, 2014, Mr. Michael was convicted by me after pleas of guilty for theft of the liquor bottle contrary to s. 334(b); assaulting the loss prevention officer contrary to s. 266; assaulting a peace officer in the execution of his duty contrary to s. 270(2); and breaching a probation order he was under by failing to notify his probation officer that he had moved to Ottawa. Neither assault victim chose to furnish victim impact statements during sentencing.

[33] On March 1, 2014, a severely intoxicated Mr. Michael was drinking alcohol in front of the shelter where he was staying. Again, he was in the throes of a tantrum. He was running in front of the shelter and jumping onto the road in front of traffic, putting himself at risk. He had a verbal confrontation with a snowplough operator and then, when returning to the shelter, broke a glass door he struck in a rage. On May 2, 2014, he was convicted by me after pleas of guilty of mischief for breaking the glass door, for again breaching his probation order dated January 18, 2013 by not being of good behaviour, and of breach of recognizance for consuming alcohol contrary to terms of release he was under.

[34] On June 19, 2014, Mr. Michael was wandering down the middle of a busy street and ambulance attendants, called by someone to assist him because of his bizarre behaviour, were trying to persuade Mr. Michael to enter the ambulance. The police were summoned and attempted to apprehend a severely intoxicated Mr. Michael under s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7. Again, Mr. Michael, who is far from physically imposing, lashed out, kicking at the officer in the torso area and legs while being apprehended. He was again overpowered, placed in restraints and taken to the cell and a spit mask was administered. On June 26, 2014, I convicted Mr. Michael, after pleas of guilty, for assaulting a peace officer in the execution of his duty and for breaching a probation order, this time the order of May 2, 2014 that I had placed him under, for not keeping the peace and being of good behaviour.

[35] Mr. Michael pled guilty to the offences and the law requires that he receive credit for having done so. In court, when sober, he is polite, soft-spoken, calm and respectful.

"The specifics of the offender"

[36] Mr. Shaun Michael is 26 years of age. He is an Inuit, originally from Iqaluit. He is the product of a forced arranged marriage. He barely remembers his father. His memories are of his drunken father beating his mother and sister. His mother left Iqaluit when Shaun was seven, taking him to Montreal. Shortly afterwards, his mother moved to Toronto, leaving him with his abusive alcoholic father for approximately six months. Because of neglect by their father, Shaun and his sister had to steal food to eat. When the police came in response to a noise complaint, they begged the officers to stay.

[37] After this short period with his father, Shaun moved to Toronto to be with his mother. He spoke Inuktitut and little English. He was bullied because of his language and colour. To cope, Shaun stopped speaking Inuktitut and over time lost his language.

[38] During his first seven years in Toronto, Shaun's mother lived with a man who Shaun liked, but his mother and the man broke up. His mother, who was having personal problems, became pregnant with another man who moved in with the family. He was verbally abusive and he and Shaun's mother abused alcohol together. Shaun and his sister were in constant trouble even when living with the man Shaun liked, and by 13, they were put into care of the Children's Aid Society. There had been inadequate supervision in the house. By this time, Shaun was already abusing alcohol.

[39] Shaun moved from group home to group home and was a runner. He began smoking marijuana and dropped out of school in grade 10. He was taking anti-depressant pills for a while but his treatment was not maintained. When he ran, he would live on the street and steal.

[40] When Mr. Michael was 18, no longer eligible for group homes, he tried living with his mother and her partner, who was still abusing alcohol and always angry. Mr. Michael soon moved in with his aunt for approximately a year and, according to her, abused marijuana habitually. The arrangement broke down and he moved out, acquiring his own apartment and surviving on Children's Aid Society benefits, until he was 21 and no longer eligible. He then began living on the street and in shelters. He worked sporadically, including as a construction helper, at Tim Horton's and as an office mover, which he did for a year and a half. Mr. Michael explained in his testimony before me that he found the work painful because of a back injury sustained in a car accident when he was 19, and that he was using his money to buy alcohol. The "Gladue report" prepared for Mr. Michael on August 10, 2011 discloses that Mr. Michael would drink to black out and was using a lot of drugs. It also discloses that two months before the report, around the time he lost his moving job, he started using crystal meth, which he took every day. He was contemplating suicide. The Gladue report also discloses that Mr. Michael lost the job because of absences in the spring of 2011. Even before his recent decline, Mr. Michael could not hold down a job.

[41] Mr. Michael has accumulated a significant record of offences. During his youth, Shaun was convicted of two "assault with a weapon" charges, receiving probation in each case and he served 28 days of pre-sentence custody for the second incident. In August of 2011, Mr. Michael served 90 days in addition to 94 days of pre-sentence custody for robbing a panhandler while drunk, along with a 30-day concurrent sentence for sexual assault after grabbing a woman's buttocks, again while drunk. At the same time, he also received a nine-month conditional sentence for breaching a recognizance and probation order. Upon his release, he committed two thefts in short order, followed in January 2013 by a mischief and another assault with a weapon for which he received 40 days in jail and two years of probation. Within four months, he was arrested for yet another mischief and a simple assault charge, serving eight days of pre-sentence custody and 18 days in jail, followed by another one-year probationary order. All of these offences related to alcohol and drug abuse.

[42] Mr. Michael originally came to Ottawa because he learned his dad, who he had not seen in many years, was here. For a week or so after arriving, Mr. Michael lived with his aunt but he moved out because she has her own issues and her own family. He was on the street when he committed the offences before me, or was staying in shelters. His dad also lives in the shelter system because he continues to struggle with alcohol abuse. At the time of the hearing, Mr. Michael was back living with his aunt. He is on social assistance. His income is $250 a month, a "street allowance". He owns nothing.

[43] As a result of his arrest on the first set of current charges, Mr. Michael was put in touch with the aboriginal court worker, Ms. Jennifer Valliquette. She applied for Mr. Michael's entry into a Native Horizon Treatment Centre, a residential program. They were awaiting a response, but anticipated at the time the first set of pleas went in before me in May of 2014 that a bed may become available in August. He was not yet in treatment when he entered his two new pleas of guilty on June 26, 2014.

[44] Mr. Michael has been in treatment before. It is reported in his Gladue report that the one time he was in a residential program he was kicked out because of problems he was causing. He has been on probation, including treatment conditions almost uninterrupted since 2011. In 2011, before the first of those orders, he told the author of the Gladue report, "I want to get treatment, go to meetings find a job and a place." When he was cross-examined on his affidavit before me he said that he wants to get help with his drinking "so I can find a job, find a place". Workers at the Inuit Cultural Group in Ottawa were apparently scheduled to help him build a resume the day of this hearing. Mr. Michael was asked in re-examination if he is still drinking after being released from custody on the final set of charges before me. He responded, "A lot."

Summary and evaluation of the seriousness of the offence

[45] Looking at the offences committed by Mr. Michael, they fall at the lower end of the range of offences within the Criminal Code. Nor are the actions of Mr. Michael among the more serious examples of the offences he did commit. Of course, the loss prevention officer did not deserve to be treated as he was and he warrants the protection of the law when simply doing his job, but there is no evidence before me that the loss prevention officer was physically vulnerable. The assault was a lashing out at a non-vital part of his body rather than a sustained or directed attack. While no doubt painful, it caused no harm. And while the peace officers also deserve to be protected when doing their job, the assaults against them were also transient and caused no harm. The officers were never at risk of serious injury from the drunken and slight Mr. Michael, who was overpowered and restrained. There are no aggravating factors attending the mischief offence, and the breaches of condition are lower-end violations, with the exception of the failure to notify probation services of a change of address after moving. While this offence could frustrate the entire point of probation, I do not find that Mr. Michael was expressing contempt for this court order when he left Toronto without notice. Mr. Michael was being irresponsible. He came looking for his father, who he heard was in Ottawa.

[46] Mr. Michael is a repeat offender, which aggravates things. His degree of moral responsibility is significantly attenuated, however, by both the context of the offences and his aboriginal status. The first offence, the theft of liquor, was an unsophisticated crime committed while his judgment was impaired. Meanwhile, the crimes that occurred on March 1, 2014 and June 19, 2014 were committed by a young man who was acting not for personal gain or vengeance or malice. They were the product of self-destructive, desperate behaviour. On each occasion, the precipitating event was Mr. Michael putting himself in harm's way in traffic, and then lashing out when intervention occurred. On the last occasion, his contact with the police occurred after a laudable but failed attempt to protect Mr. Michael from himself. His desperation, and the depth of the addiction reflected in his theft, can be understood when looking at his background. Mr. Michael is the product of abuse. His introduction to the world was domestic violence, drunkenness and parental neglect. His formative years were marked by bullying, social rejection and cultural displacement. He now lives on the margins of society. He has no stable home. He is the poorest among us. He survives on the street. That he is addicted is not surprising. That he is unable to behave himself civilly when intoxicated is predictable. And while it is not excusable, the fact that he is frustrated enough to engage chronically in the largely nuisance behaviour he is being sentenced for is all but inevitable. In R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, at para. 73, the Supreme Court of Canada explained:

Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated at para. 60 of R. v. Skani 2002 ABQB 1097, 331 A.R. 50 (Alta.Q.B.) after describing the background factors that lead to Mr. Skani coming before the court, "few mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principles of sentencing -- that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[Emphasis in original]

Mr. Michael is an exemplar of the tragedy of aboriginal offenders that plays itself out on a daily basis in our criminal courts. The overwhelming majority of such offenders are not warriors or dangerous predators. Their acts are more commonly, like the substance-addled conduct of Mr. Michael, a social nuisance committed by the desperate and pitiable.

Factor 3 -- "The kinds of sentences imposed for similar or related offences"

[47] The principle of sentencing related to sentences for similar offences is sometimes called the principle of "ordinal proportionality" and is found in s. 718.2(b): "a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances". This principle is helpful when situating the appropriate sentence in a particular case within the range of offences that apply to the kind of offence in question. Offenders receive everything from discharges to short periods of jail for each of the kind of offences Mr. Michael committed, depending upon the complex of factors, including the sentencing goals that the instant case requires to be emphasized.

[48] Almost all of the goals of sentencing identified in the Criminal Code are relevant in Mr. Michael's case. I will begin with the punitive components. The sentence imposed on Mr. Michael must reflect denunciation for his crimes. His violence, in particular, cannot be condoned. The sentences must also be sufficient to exact a price greater than any benefit that could be accrued by such actions, in order to deter others. While specific deterrence cannot be disregarded, Mr. Michael has been incarcerated regularly for his offences, and it has not prevented him from reoffending in strikingly similar ways. Still, he needs to know that he can expect to be punished for such behaviour.

[49] In my view, the punitive component of the sentences required in this case is a jail sentence, even though Mr. Michael is an aboriginal offender who should be incarcerated only after all other available sanctions are considered. His conduct at issue requires incarceration given his record of violence and his penchant for damaging the property of others and breaching court orders. The lawyers appearing at his sentencing hearings agreed, with both the Crown and defence counsel recommending that his crimes warranted jail of sufficient length to express the principles I have described. In his case, a fine is not an alternative, because Mr. Michael cannot pay a fine and it would be a legal error for me to impose one.

[50] A court cannot, of course, incarcerate an offender more harshly than he deserves to make an example for others. The sentence, including the incarceration I impose, must be proportional to the aggravating and mitigating circumstances as they bear on the seriousness of the offence and his degree of responsibility. Based on my experience and an examination of the authorities, bearing in mind his aboriginal status, his circumstances and the circumstances of his offences, the proper cumulative range of the sentences is in the area of four months.

[51] At the same time, it is evident to me that "a sanction that takes account of the underlying causes of [Mr. Michael's] criminal conduct may be more appropriate than one aimed only at punishment per se". The genesis of Mr. Michael's crimes is his addiction, his social displacement and the psychological damage he has sustained. The best way to attempt to protect the public against Mr. Michael's episodic outbursts is to support his rehabilitation and to try to encourage a sense of community responsibility. The sentence imposed on Mr. Michael must include a probationary term of sufficient length to attempt meaningfully to address his deep personal problems. Any other sentence would, in my view, be an error in principle.

[52] As a result of the application of these principles and the submission of counsel, I imposed the sentences that I did, which I judge to be demonstrative of the appropriate range for his offences. Specifically, Mr. Michael has spent a little more than four months in custody for his offences, and was placed on probation for two years.

[53] For the first seven charges from January 2, 2014 and March 1, 2014, Mr. Michael received a suspended sentence and 24 months of probation, in recognition that he had spent the equivalent of 93 days in pre-sentence custody. The Crown had been seeking an additional 27 days, which I declined to give. In my view, that tokenistic increase was not required to satisfy the punitive aspects of the sentence and was inappropriate in light of the Gladue principles of restraint. Necessary messages had already been sent by the pre-trial incarceration. For administrative purposes 75 days were credited on the four convictions from January 2, 2014, and 18 days' credited on the three convictions for March 1, 2014.

[54] For the second two charges, after a joint submission was advanced before me I gave Mr. Michael 18 days' incarceration concurrent on each charge, with the record attributable to the assaulting a peace officer charge to reflect an additional 12 days of pre-sentence custody (being eight days on a 1.5:1 basis), for an effective incarceration on that crime of 30 days.

[55] In my view, in all of the circumstances, Mr. Michael's sentence was firm but fair, consistent with the positions offered by the parties, and representative of the proper sentencing range.

[56] Mr. Michael's constitutional complaint, of course, is not with the fitness of this sentence. His constitutional complaint is with the legislative "top up" that is required to be imposed in addition to the fit sentence that I have endeavoured to determine according to law. It is the additional $900 punishment the Crown is seeking that he contends to be "cruel and unusual".

(c) Would Mr. Michael's sentence become grossly disproportionate if the surcharge were to be added?

[57] In R. v. Nur, supra, the court stressed the importance of ensuring that the actual effect of the punishment on the individual be gauged before an attempt is made to determine whether that sentence is grossly disproportionate. After this is accomplished, the court deciding the challenge is to ask whether a sentence with this impact would appear "so excessive as to outrage standards of decency" in all of the circumstances of the case. I am to strive to avoid judging this by using my own personal standards. My obligation is to consult the legal principles identified and bear in mind that Parliament is free to set sentencing policy, even if it restricts the individualized approach to sentencing, so long as the sentencing policy is not grossly disproportionate. I am to judge this, as with all constitutional evaluations, by striving to identify the standards of reasonable members of the community, properly informed, and I am bound to consider the factors Nur instructs, including the "peneological goals and sentencing principles reflected in the challenged minimum", and "the existence of valid effective alternatives to the mandatory minimum".

The actual effect of the punishment on the individual

[58] A good deal of the argument before me focused on the effect of the impugned victim surcharge on Mr. Michael. Mr. Konyer called the actual effect cruel. As described, Mr. Michael is an addicted, virtually homeless individual living on a social assistance street allowance that puts him deep below the poverty line. The sentence imposed to date, without the victim surcharge, is already proportional. For Mr. Michael, a $900 surcharge would be so crushing as to be grossly disproportionate, even disregarding the impact on him of the balance of the sentence. To put the total victim surcharge being faced by Mr. Michael into perspective, Mr. Konyer pointed out that each of the nine $100 victim surcharges that s. 737 directs be imposed, represents 40 per cent of his monthly income, a crushing sum, particularly so given that he owns nothing and a $250 month income level is already one of grinding destitution. I note, by comparison, that a $100 surcharge imposed on an Ontario Court of Justice judge would be less than 0.5 per cent of their monthly income level, yet the surcharge for the same offence committed under the same circumstances would be the same. Simply put, Mr. Konyer's point is that the levy is not calibrated fairly or with any regard to its impact on Mr. Michael.

[59] Mr. Konyer argues that it is obvious that Mr. Michael will not be able to pay this surcharge in the foreseeable future, and given the depth of his addiction and his criminogenic risk factors, it is probable that he will never be able to pay it. It is cruel, he contends, to expect a person as poor as Mr. Michael pay a sum this large. It will be a crushing burden for him to discharge it, even if given time to pay.

[60] Mr. Konyer also argued the prolonged or perpetual risk of incarceration where the sentence hangs over the head of an offender who cannot discharge it is cruel on its own. He spoke first of the stress of the threat of jail that continues until repayment. Mr. Konyer also argued that leaving Mr. Michael subject indefinitely to licencing suspensions and to a poor credit rating is cruel, as is imposing a sentencing obligation that he may never be able to discharge. He also points out that someone who cannot pay a victim surcharge can never apply for a record suspension, the legal replacement for the old "pardon", because the waiting time required to apply for a record suspension does not begin to run until the expiration of any sentence, "including imprisonment, a period of probation and the payment of any fine", which the parole board interprets to include "surcharges, costs, restitution and compensation orders". I would add that even if Mr. Michael does prove able to pay his surcharge in the long term, he may, because of his poverty, have to wait longer for a record suspension than those who are able to pay, an effect that can perpetuate the effects of a criminal record, including on employment.

[61] In contrast, the Crown called the victim surcharge "ancillary", and acknowledged that although the victim surcharge can cause hardship, the law prevents it from operating in a grossly disproportionate way. Although it did not organize or order its submissions in this way, in substance the Crown offered three general responses: (1) that time to pay ameliorates hardship for those with limited funds and there is no hardship for those who will never be able to pay because the Crown is without remedy in such cases; (2) that any ancillary consequences experienced by those who are too poor to discharge their obligation in the short or even long term are too insignificant to be cruel and unusual; and (3) that if I find the victim surcharge to be a punishment and thus part of the sentence (as I have done), proportionality can in fact be achieved in spite of s. 737 by imposing nominal fines that reduce the costs of the victim surcharge to a tolerable level for anyone.

[62] For reasons explained below, if argument (3) is accepted it will put an end to the particularized inquiry, regardless of what I find on arguments (1) and (2). In my view, it is nonetheless best for me to complete the gross disproportion analysis relating to arguments (1) and (2) before addressing argument (3). Before I do any of this, however, I must resolve a controversy relating to the facts I am permitted to consider in assessing the impact of the sentence on Mr. Michael.

[63] The controversy arises from comments made by Justice Binnie in R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, at paras. 31 and 33, referenced repeatedly by the Crown. Justice Binnie commented that it is wrong for judges to assume that offenders will always be unable to pay because "it is often difficult to predict with certainty whether an offender will in future acquire the means to pay the fine, whether through his own labour, or perhaps a windfall". If I am to take this as an admonition not to infer that Mr. Michael will likely remain unable to pay on an ongoing basis, many of the concerns raised by Mr. Konyer would have to be dismissed.

[64] In my view, I am not bound to evaluate this case on a theory of economic recovery. As I will point out in more detail below, unlike the present application, Wu was not a Charter case. According to law, the particularized inquiry currently being examined under s. 12 of the Charter obliges me to consider the actual impact of the minimum sentence on the offender. Since the impact of this sentence will be felt over time given that Mr. Michael cannot pay the fine now, I have to anticipate that effect over time and I have to do so in an area of law where hypotheticals should be reasonable. Judging the actual impact of the sentence on Mr. Michael by holding out that he could win a lottery or inherit money from a long-lost relative who is hiding it in their notoriously impoverished community is anything but reasonable and can in no way represent a realistic appraisal of the actual impact this sentence will have on the man. Nor can the assumption that, notwithstanding his addiction and personal demons have made him unemployable for two and one-half years, he may in the foreseeable future find and maintain a job that pays well enough to remove the hardship entailed in discharging a $900 debt. In my view, I have to bear in mind that with a Charter complaint the burden on the complainant is not to remove the "uncertainty" referred to in Wu. The burden is on the applicant to establish the breach, and the facts upon which it will be adjudicated, on the balance of probabilities.

[65] In this case, I find on the balance of probabilities that Mr. Michael cannot pay the victim surcharge now and will not be able to pay the $900 sum in the foreseeable future. I make this finding given Mr. Michael's lack of education, his deep-seated personal problems, the depth of his substance abuse and the horrid downward spiral he has been on for more than two and a half years. Indeed, there is a real chance that he will never be able to pay the victim surcharge, and it would not be realistic to disregard this distinct possibility when considering the probable impact on him.

[66] I have arrived at these factual findings notwithstanding Mr. Michael's honest declaration that he wants treatment, a job and a place to live. That is both encouraging and to be encouraged, but he said the same thing when his Gladue report was being prepared in 2011, and since then has remained a frequent flyer in the criminal justice system. Nor does the fact that I have placed him on rehabilitative probation invalidate this factual finding. Those who enforce the law have a legal and social obligation to take steps to encourage rehabilitation, but it does no service to the law to be blissfully optimistic. On the evidence before me, Mr. Michael is currently absolutely unable to pay a $900 surcharge, and even if things begin to improve, repayment will almost certainly remain seriously burdensome. The kind of recovery that would make payment of $900 a tolerable burden or a merely "ancillary" aspect of his sentencing is improbable in the foreseeable future and I will not analyze his case on that footing.

[67] The Crown offered a simple thesis in response to Mr. Konyer's complaints about the effect of the victim surcharge and the burden of payment on Mr. Michael. Mr. Lalande maintained, for the Crown, that time to pay can reduce the hardship for the poor like Mr. Michael, and even for those who cannot ever pay the victim surcharge becomes meaningless because the Crown will have no remedy for non-payment. As the Crown factum argues, "there is no actual impact on an offender who is and remains unable to pay". The Crown argues that it follows that imposing the victim surcharge is not cruel in any way.

[68] The place to begin evaluating the Crown responses is with the Crown contention that there is "no actual impact on an offender who is and remains unable to pay". The Crown thesis is based, first, on the adage that "you cannot get blood from a stone". If the person cannot pay, then payment will not occur. The Crown argues that where this is so it has no alternative recourse under the legislation. The "victim fine option" program contemplated by the Criminal Code is not an option for Mr. Michael as there is no program in place in Ontario, and Mr. Mack contends that, in any event, programs provided for under s. 736 are at the option of the offender, as that provision says "an offender . . . may . . . discharge the fine, in whole or in part by earning credits for work". He argues that where it applies, the fine option program is an offer to escape the threat of incarceration, not a form of community service order. Meanwhile, the sanction of incarceration in lieu of payment is not legally possible if the accused is, by reason of poverty, truly unable to pay. This is because, as the Supreme Court of Canada affirmed in R. v. Wu, supra, at paras. 60-66, the mechanism for incarcerating for non-payment, a warrant of committal available under s. 734.7 of the Criminal Code, can be granted by a judge only if other collection mechanisms provided by law are not appropriate, and even then, only where the "offender has without reasonable excuse, refused to pay the fine". Someone who is too poor to pay is not refusing. They simply cannot pay: R. v. Wu, supra, at paras. 60-66. As the court noted in R. v. Lavigne, supra, at para. 48, with reference to whether the ability to pay can be considered in the case of a fine in lieu of forfeiture, "while ability to pay may not be taken into consideration by the court either in deciding to impose a fine instead of a forfeiture or in determining the amount of the fine, it nonetheless comes into play at later stages [of enforcement]". The same holds true for the victim surcharge, says the Crown.

[69] In my view, the Crown puts things too highly by equating limitations on the ability to collect with the absence of any actual impact on the offender, even assuming that an offender is and will remain unable to pay the levied amount.

[70] First, as a matter of law an offender ordered to pay a victim surcharge is under a legal obligation to pay the victim surcharge. They are under sentence and this consequence in and of itself cannot be disregarded.

[71] Moreover, the purpose of the victim surcharge order is to achieve payment. Even though Mr. Michael is in seriously straightened circumstances, unable to discharge his $900 obligation, I cannot assume that nothing will be recovered from him, and if there is even partial recovery, the victim surcharge will have had an effect.

[72] In this regard, there is evidence before me provided by the Crown showing that the Ministry of the Attorney General has a service agreement with the management board secretariat "For the Collection of Outstanding Fines Accounts." Collection is handed over to private collection agencies. There is nothing in the law that I am aware of that requires these collection agents to hold off attempted recovery from the poor because it will cause hardship or they cannot realistic pay the whole amount. The assignment of collection agents is to get the money and they may ultimately secure some funds from Mr. Michael.

[73] Even if collection efforts are not undertaken, or fail entirely, Mr. Michael, who will be under an order to pay, could feel obliged to use some of his meager funds in an attempt to satisfy the sentence, even if this causes significant hardship, and even though the Crown has no meaningful way to enforce payment. Simply put, I cannot proceed on the assumption that a legislated, solemnly imposed order made at the time of a criminal sentencing to pay funds will result in no payment being made.

[74] Even if it does prove to be the case that money is never collected -- a prospect that is not at all unrealistic -- prolonged or indefinite delay in repayment has its own price. Mr. Konyer referred first to the ongoing risk of incarceration that will hang over Mr. Michael. The Crown demurred, saying that there is no risk of incarceration if Mr. Michael truly cannot pay, so why worry? I reject this. A person told that they could be incarcerated for not paying can be expected to find that threat stressful. They are apt to find it stressful even if told this will not happen if they are truly unable to pay. It cannot be disputed that the factual/legal question of when someone is sufficiently poor that a failure to pay will qualify as an innocent inability to pay rather than committable "refusal to pay" comes with no clear definition. Anyone on the margin who owes outstanding criminal levies and who attends to their obligations will be left to wonder whenever spending any money on themselves or their families whether that expenditure was necessitous enough to justify, or whether spending that money in this way could bring them to jail. In my view, I cannot ignore the effects of the risk of jail, when the sanction of jail has been established by the legislation precisely to intimidate individuals into paying. That is a stressor that must be taken to affect everyone who owes an unpaid victim surcharge.

[75] Exposing those who are poor such as Mr. Michael to perpetual, unsatisfied, sentencing obligations also deprives them of the ability to repay their debt to society. Because they do not have the means to repay, they lose the opportunity to be restored. I do accept that many offenders lack the sophistication to delve into deep questions of legal philosophy and moral responsibility, and that is probably true of Mr. Michael. Still, the notion of just punishment has long carried the promise that after the eye is given for the eye, the offender has discharged their debt and reconciliation can begin. The whole idea of restorative justice legislatively endorsed in the Criminal Code, and recognized to be of cultural significance to aboriginal offenders such as Mr. Michael, depends on reconciliation. Indeed, some legal philosophers have justified punishment on the basis that it is a kindness to offenders to punish them since it permits them to heal. Whether this is persuasive or not, the flip side is. It is a cruelty in some measure to tell an offender that they must discharge an impossible sentence before their debt is expunged. Reducing all of this to a less ethereal plane, the point is that so long as Mr. Michael fails to pay the victim surcharge he remains indebted and criminalized. He has not paid the price for his crime and remains unrequited because he is poor. It is worth noting in my view that when it comes to the sentence of discretionary fines, the law avoids this consequence by prohibiting fines from being used to punish offenders who cannot pay. In the case of victim surcharges, imposing unpayable monetary penalties is a legislatively accepted consequence. If it proves to be true that Mr. Michael never gets out from under the debt the impugned legislative scheme seeks to impose, it is a consequence that would befall him. He will remain indebted to society with all of the stigma and stress that imposes.

[76] As indicated, Mr. Konyer identified still other collateral consequences that would occur from overlong or perpetual poverty-caused non-payment by Mr. Michael, even if he is never actually deprived of the money. The Crown urges that many of these concerns are unrealistic in his case. The Crown urges that so long as Mr. Michael is unable to pay the victim surcharge, for example, it is unrealistic to imagine him undertaking licenced activities, and so he will not be affected by the collection strategy available under Criminal Code s. 734.5 of refusing to give or renew licences and permits to him until a victim surcharge debt is discharged. The Crown also points out that it will not be victim surcharge that impairs his credit rating. I agree with these base observations, and as I pointed out during argument, the same point can be made in the case of a record suspension. The application for a record suspension costs $631. If Mr. Michael can pay that sum, he can pay the victim surcharge.

[77] Having said all of this, I cannot help but observe that the Crown argument entails recognition that Mr. Michael is so poor there is no realistic expectation that he will be able to engage in licenced activities, or ever seek credit, or ever afford to seek the modified forgiveness a record suspension entails, yet he is still expected under the impugned legislation to pay a $900 victim surcharge. I also find it to be material in evaluating the impact on Mr. Michael of the victim surcharge that, even if he gets on his feet, Mr. Michael's waiting time to apply for a record suspension will not begin to run until he has paid the victim surcharge. If Mr. Michael cannot pay that victim surcharge because of his poverty, the effect is that he will be perpetually disqualified from applying for full reintegration and formal forgiveness.

[78] As indicated, the Crown seeks to neutralize one of the key concerns mentioned above -- that even if Mr. Michael does end up paying the $900 victim surcharge in whole or in part -- it will be oppressive for him to have to do so, because he can be given time to pay.

[79] The law that governs time to pay is expressed in Criminal Code s. 737(4). In Ontario, an Order-in-Council, 2173/99, was passed on December 8, 1999, as contemplated by s. 737(4). It establishes a time to pay of 30 days for victim surcharges arising from summary conviction offences, and 60 days for indictable offences. Extensions of time to pay are permitted on application pursuant to Criminal Code s. 737(8)(d), which incorporates s. 734.3 by reference. That provision, s. 734.3, permits a judge to vary the terms of a fine other than the amount. It has been interpreted to permit extensions of the default period to furnish a reasonable time to pay.

[80] The first observation I would make of the Crown's position is that while an "extension" can indeed be granted in the unlikely event that a substance abusing street person such as Mr. Michael has the wherewithal to prepare a written application, to serve it on the Crown, to file it and put it before a judge for consideration -- all without the assistance of state-funded legal assistance -- any extension that may be granted will not change the fact that he will still owe what is an otherworldly sum for him of $900.

[81] I also wonder about how realistic a solution extending time to pay is in Mr. Michael's case. How much of his $250 monthly income can he really be asked to contribute? The extraction of any amount from that paltry sum would cause unfair hardship, given his destitution. It strikes me that a "time to pay" order is just that, a direction to pay by the end of the prescribed period. If there is no realistic expectation that payment can be made within that period, it is more of a "hiatus order" than a "time to pay" order. Is the palliative for the economic hardship of a s. 737 really the granting of what could easily become serial extensions? In my view, extending time to pay for someone who will not be able to pay in the foreseeable future is nothing more than a promise of ongoing legal obligation, with all of the stress and risks that this implies, only that stress is compounded by the imposition of impending deadlines that are apt to be unrealistic from the start.

[82] In spite of this, the Crown urges that under the principles in R. v. Wu, supra, the only appropriate response available for those like Mr. Michael, who cannot pay now, is an extension of time. Those principles, the Crown argued, prevent an inability to pay from frustrating the operation of legislation, and I am legally bound to treat the extension of time as a sufficient constitutional palliative to the concerns Mr. Michael has raised.

[83] It is true that the Supreme Court of Canada did say in R. v. Wu, at para. 33, "[a]n offender's inability to pay is precisely the reason why time is allotted, not a reason why it should be altogether denied", and in R. v. Lavigne, supra, at paras. 47-48, the court subsequently applied the Wu principle to a "fine in lieu of forfeiture" after holding that an inability to pay is not a factor that can influence whether the order should be made. In my view, however, these comments cannot be interpreted to have a bearing on either the evaluation of the impact of the victim surcharge on Mr. Michael, or on my assessment of its compliance with s. 12 of the Charter.

[84] First, R. v. Wu, supra, and R. v. Lavigne, supra, involved payments that were very different in nature from the victim surcharge. Specifically, the victim surcharge is a pure levy unconnected to the particular offence or to any enrichment of the offender. In contrast, the sums owed in Wu and Lavigne are intended to require offenders to forfeit or lose any economic benefits gained by their offences. In R. v. Lavigne, the sum at issue was a "fine in lieu of forfeiture" intended to ensure that the offender be divested of the profits of his crime, and in R. v. Wu the sum required was a fine designed to deprive offenders of the gains achieved by the kind of offence at issue, and to restore the loss of tax revenue that the government is cheated of by excise tax offences: R. v. Wu, supra, at para. 33. The actual correlation between the crimes and the sums imposed in these cases makes disregard of the ability to pay understandable. This reasoning does not, however, transfer easily to victim surcharges which bear no economic relationship to the offence and apply whether the offence entails economic gain or not, or even whether there is a victim or not. Given the very different nature of the levies in issue, I cannot read the direction in R. v. Wu and R. v. Lavigne that "the proper response to inability to pay is time to pay" as an admonition to dismiss Mr. Michael's impact complaint by holding that the only recourse is to invite him to apply for an extension of time to pay.

[85] Second, and more decisively, the Wu and Lavigne cases did not involve Charter challenges. They were both decisions where sentencing judges, concerned about the inability of persons to pay, employed statutorily inappropriate strategies to exempt (in the case of Wu) and reduce (in the case of Lavigne) the amount required by law. In the absence of Charter challenge, those judges had to apply the law as it was given to them, without more. The only proper response the law provided in the face of these presumptively valid statutory payment obligations was to grant an extension. What these decisions hold is no more than that under the statutes before the court the only judicial recourse is to extend time to pay. These decisions cannot be taken to hold that so long as time to pay is available, the Charter will have nothing to say about the fact of or amount of mandatory fines.

[86] As indicated, in my view granting Mr. Michael time to pay is impractical at present, and will do little to ameliorate the hardship that the victim surcharge imposes, and will add to the stress by imposing what could be a series of artificial deadlines for repayment. While there is no doubt that extensions of time to pay can reduce the harshness of a monetary repayment order for those who can manage to pay with difficulty, on the evidence before me repayment will remain an oppressive obligation even if time to pay is granted.

[87] In examining the impact of the minimum sentence on Mr. Michael, there is another important feature that I believe I am required to consider, even if time to pay is granted, since it is a corollary of the minimum sentence. Even if Mr. Michael begins to find his feet, expecting someone as poor as he is to retire a $900 debt while he is recovering is more likely to inhibit than enhance the principles of sentencing that are rationally to be featured in his case. He will be beginning his rehabilitation in a deep financial hole. If he is forced to begin to make payments before he is financially secure, it will cause stress and economic pressure. Enforcing this sentence while he gains his feet is more apt, in my view, to contribute to the kind of despondency and frustration that feeds this aboriginal offender's addiction and his misbehaviour than it is to aid in his rehabilitation or promote in him a sense of responsibility. Simply put, an impact of the imposition of the victim surcharge on Mr. Michael is that it is apt actually to impede both his ability to reintegrate and his achievement of a sense of accountability.

[88] In summary, the actual impact on Mr. Michael is that the victim surcharge currently represents a debt of $900 that he is legally obliged to pay and is expected to pay. This is a crushing amount for him, beyond his foreseeable means. It is a sum that, in relative hardship, is many multiples of what a moneyed offender would have to pay. Simply put, Mr. Michael is being treated more harshly because of his poverty than someone who is wealthy. If the sum is collected, even after time to pay has been granted and even if his circumstances improve, it will impose significant financial hardship on him. It will impose stresses on him that are apt to challenge his opportunity for rehabilitation and it will delay his reintegration into society and delay his ability to apply for sentence remission. If he is unable to pay it indefinitely, it is true that the law will not incarcerate him for not paying, but he will be left under the stress of potential incarceration. Nor will the law forgive the financial debt he owes or his debt to society. He will remain an unrequited offender.

(d) Is the victim surcharge "grossly disproportionate" as applied to Mr. Michael?

[89] In determining whether this is a grossly disproportionate penalty, R. v. Nur, supra, at paras. 68 and 78, directs that I take into account "the social harm targeted by the mandatory penalty" (also described as "the penological goals and sentencing principles reflected in the challenged minimum"), "the purpose animating Parliament's decision to use a mandatory minimum penalty", and "the existence of valid effective alternatives to the mandatory minimum". In effect, whether consequences are "cruel" requires consideration of why they are being imposed.

[90] As indicated, the penological goal as expressed by the government and representative members of Parliament is "accountability" to victims. I also accept that although it is not a goal of penology per se, another penological goal is to raise funds for crime victims by having offenders augment the financial burdens that crime creates. There is also hope, no doubt, that this process will assist offender reconciliation and rehabilitation through the contribution that is required to the provision of victim services.

[91] With respect to the sentencing principles reflected in the "challenged minimum", I honestly can find none. At bottom, the Charter complaint is that the victim surcharge rejects "cardinal proportionality" as expressed in s. 718.1 of the Criminal Code, disqualifies consideration of aggravating and mitigating circumstances contrary to s. 718.2(a), prevents consideration of the offender and therefore override the principle of sentencing equality or "ordinal proportionality" in s. 718(b), and displaces principles that are central to the sentencing of aboriginal offenders.

[92] In terms of "the purpose animating Parliament's decision to use a mandatory minimum penalty", I accept the Crown position that the victim surcharge was made mandatory because sentencing judges were often not imposing it, waving it without proof of "undue hardship" and without providing reasons. There was evidence before me that in some jurisdictions, if an offender was sentenced to jail the victim surcharge was automatically waived on the predicate that it must be unduly difficult for someone in custody to pay. Parliament decided to make the victim surcharge mandatory to put an end to this. Indeed, to punctuate its point that this response was necessary and to illustrate the extent of the need, the Crown before me included, in its materials, cases where judges have avoided or evaded the victim surcharge even since it has become mandatory.

[93] There is a further issue relating to the purpose of the mandatory victim surcharge that remains, namely, whether Parliament intended to ensure universal application of the victim surcharge even on those who cannot pay, or whether universality was simply a means to the end of preventing unmeritorious waivers. A review of the legislation does not answer this because the fact that the victim surcharge is to be applied universally is capable of reflecting either option.

[94] Hansard excerpts support the view that universality is a goal in its own right, and not a means to achieve a goal. These proceedings suggest that there was an evolution in thinking by the most responsible officials. Earlier documents suggest that Parliament intended universality as a goal so that all offenders would be accountable, intending those who could pay to do so, and those who could not pay to either go to jail or be allowed to participate in fine option programs to discharge their debt in order to avoid incarceration. In these early statements, no mention was made relating to the effect of the R. v. Wu decision on this plan. When the Honourable Rob Nicholson was first asked about the impact of that case he did not respond directly, repeating that there is a fine option program available in seven provinces, and "[i]ndeed in provinces which do not, or do not yet have one of these programs, they deal with it in a certain way". During subsequent debates and presentations, official statements have included reference to R. v. Wu, but continue to explain that offenders who cannot pay "would be able to avail themselves of a fine option program" in those provinces that have them, or use "other mechanisms" in the other three provinces that "offer alternative mechanisms". What those mechanisms are is not explained, and as the argument before me illustrated, there are no "alternative mechanisms" to discharge the debt in place in Ontario. That, however, is a separate point. The instant point is that official comments both before and after the Wu decision issue was raised supports the view that at least some parliamentarians understood universality not only as a means to improve enforcement, but as a goal or purpose per se.

[95] There are two possible indications in the legislation that universal enforcement is simply a means to an end, and not an end in itself. First, if Mr. Mack is correct and s. 736 permits but does not require offenders to discharge their debt using the "fine option" program, this is inconsistent with a view that universal accountability is a purpose of the legislation. It would be peculiar for Parliament to pursue that goal yet not develop the means of enforcement for persons who cannot pay. Second, the legislation relies on the discretionary decisions of provinces to create fine option programs, which also contemplates the regime in Ontario that the Crown described in this case, in which the victim surcharge is effectively unenforceable for those who truly cannot pay. Out of an abundance of caution because I do not want to understate Parliament's purpose, however, I will proceed on the basis that universal application may have been more than a means to achieve the purpose of preventing unmeritorious exclusions from the victim surcharge. I will treat universal enforcement by holding all offenders accountable through the provision of funds or community service as part of the purpose of the legislation in its own right.

[96] Parliament is, of course, entitled within constitutional limits to select the means it chooses to achieve its legislative goals. As indicated, R. v. Nur nonetheless requires me to consider whether there are "valid effective alternatives to the mandatory minimum". There are no "valid effective alternatives to the mandatory minimum" if universal application to ensure that every offender is held accountable for the costs of providing victim services is indeed a goal in its own right. It is relevant in assessing the impact of this, however, that the legislation is structured in a way that achieves universal application in name only in Ontario given that there is no mechanism for offenders who cannot pay to discharge their debt through "community service", and that the same would be true nationally if "community service" in default is unenforceable.

[97] If the purpose of the mandatory minimum is stated more modestly, as done by the Crown in this case as preventing abuse by judges of the "undue hardship" exemption, there is an obvious "valid effective alternative to the mandatory minimum". An effective solution that has been available all along when a judge fails to apply the law properly is to use appeals or judicial review to overturn inappropriate decisions. Indeed, that is the very solution that is demonstrated to be effective in the cases relied upon by the Crown where some judges have made legal errors by failing to apply the current mandatory victim surcharge. Those decisions were appealed successfully. Making the victim surcharge mandatory is one solution to the failure of judges to impose it where it should be imposed. Another, one that keeps the baby after the bathwater has been tossed out, is for the Crown to appeal or seek to review decisions where the victim surcharge is improperly waived, or where adequate reasons are not given. Judges will not misapply a law when given clear appellate direction on how to apply it, and if they do, they can easily be corrected.

[98] If Parliament wanted to constrain the discretionary decision of judges in this regard, it could have made the "undue hardship" exemption more specific, by permitting exemption only for those who are unable to pay. It could go further and address its concern about the routine use by some judges of "jail" as an omnipresent form of "undue hardship". This occurs because the statutory times to pay are so short that most incarcerated offenders will still be in custody when the victim surcharge falls due. The force in "undue hardship by jail" could be removed by providing that the statutory default time to pay the surcharge begins to run when the accused person is released from a sentence of incarceration. This would, in my view, remove judicial disquiet about imposing a victim surcharge knowing that it cannot be paid within the time set by law.

[99] It is no doubt obvious from the foregoing that I am persuaded, applying to the best of my ability objective legal standards, that a reasonable person, properly informed, would find that imposing $900 in surcharges on an addicted, impoverished and troubled Mr. Michael, in which each $100 component represents 40 per cent of his monthly income and in which there is no adjustment allowed for his ability to pay, a sum that he is unlikely to be able to pay in the foreseeable future and that will result in an overlong if not perpetual delay in repayment of his debt to society for the modestly serious offences he committed, is "more than merely excessive". This remains so notwithstanding the penological goals and purposes animating this mandatory minimum penalty. While it creates these hardships for Mr. Michael, the legislation fails to achieve universal accountability in the case of offenders who cannot pay, perhaps including Mr. Michael, and if its purpose is the more modest one of preventing judicial abuse of the "undue hardship" exemption, that could have been remedied in a less obtrusive fashion. I find that a reasonable person, properly informed, would be troubled by a provision that pursues its goals this ineffectively, and without reflecting core principles of sentencing. In my best judgment, those persons would find Mr. Michael's punishment to be "so beyond what would be proper or proportionate punishment as to be grossly disproportionate" and "so excessive as to outrage standards of decency": R. v. Nur, supra, paras. 64-66.

[100] This assessment does not, however, end matters. I still have to address the Crown's third theme before coming to a conclusion, that the gross disproportion that I have described as grounding the s. 12 of the Charter complaint can simply be avoided by judges by applying the principles of sentencing.

(e) Can gross disproportion be avoided?

[101] Mr. Lalande, for the Crown, argued that if s. 737 is part of the sentence, it can and must be applied consistently with the general principles of sentencing, including the principles of proportionality, totality and equality. It therefore does not require disproportionate results, let alone the grossly disproportionate punishment I have described. He said there are two ways that this can be achieved: (1) by taking the effects of the victim surcharge in s. 737 into account when evaluating the overall sentence that needs to be imposed; or (2) by utilizing nominal fines to reduce the victim surcharge, calibrated at 30 per cent of a fine imposed. Under the current legislation, if a fine is levied, this formula takes precedence over the $100 and $200 flat fees. If the fine is nominal, this reduces the victim surcharge to tolerable levels.

[102] In support of his position, Mr. Lalande referenced an oral decision of my own, R. v. Van Nguyen (unreported, April 7, 2014) (Ont. C.J.), which I delivered in a busy plea court offering abridged reasons. In that case, I imposed a nominal fine of $1 and the equivalent of 45 days in jail on an offender for two alcohol thefts from the LCBO. I explained that I imposed the nominal fine because I concluded that in all the circumstances of the case, the time in jail coupled with $200 in surcharges would be disproportionate given his personal circumstances. By imposing two $1 fines, the surcharge would apply but at a modest rate of 60 cents, 30 per cent of each fine, which would not add to the punitive impact of the overall sentence. I have done this in a handful of cases. Other judges have done the same, including Justice Healy in R. v. Cloud, supra.

[103] There is, in my view, a persuasive case to be made that this technique is appropriate and I believe it to be appropriate. Specifically, there is authority supporting the general proposition that mandatory minimum provisions must be applied consistently with the principles of sentencing, to the extent this can be done while still applying the mandatory minimum sentence. This proposition finds support in the general reasoning of the Supreme Court of Canada in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19. That case involved an exercise in statutory construction that would affect the manner in which a minimum sentence of imprisonment would be served. The Wust court directed, at para. 22: "it is important to interpret legislation which deals, directly or indirectly with minimum sentences, in a manner that is consistent with the general principles of sentencing". This integrated interpretation is required to give effect to "the intention of Parliament" which is reflected not only in minimum sentencing provisions but in legislated principles of sentencing that are equally binding on judges, such as proportionality under s. 718.1, the principle of equality in s. 718.2(b) and the principle of totality in s. 718.2(c).

[104] Similar, more directly applicable reasoning has been endorsed in other courts, in other contexts. In R. v. Stauffer, [2007] B.C.J. No. 6, 2007 BCCA 7, the court applied the reasoning used in R. v. Wust, supra, to ensure that the combined effect of a minimum sentence and other non-minimum sentences do not undermine other binding principles of sentencing. This was done by adjusting downward the non-minimum sentences that would otherwise be imposed to prevent the total sentence from becoming disproportionate through the operation of the minimum sentences. This appears to have been done by the Ontario Court of Appeal in R. v. L. (G.C.), [1979] O.J. No. 481, 47 C.C.C. (2d) 138 (C.A.), where the non-minimum sentence was reduced so that combined with the minimum sentence the youthful offender would not end up in a penitentiary, and in R. v. Saint Amand, [1982] O.J. No. 73, 67 C.C.C. (2d) 130 (C.A.), where the global sentence for three robberies was assessed at one year, in order to keep the total sentence at a proportionate four years, after the mandatory one-year consecutive minimum sentences were applied.

[105] Not only are the lengths of non-mandatory sentences adjusted to produce a total sentence that is not disproportionate when coupled with the minimum, but as in Saint Amand, some courts use the opportunity to impose concurrent sentences to prevent minimum sentences from producing disproportionate results, including in R. v. MacLean, [1979] N.S.J. No. 584, 32 N.S.R. (2d) 650 (S.C. (A.D.)); R. v. Sherman, [2004] O.J. No. 651, 183 O.A.C. 198 (C.A.); and R. v. Rocheleau, [2013] O.J. No. 5137, 2013 ONCA 679.

[106] The case for adding nominal fines to each sentence to reduce the victim surcharge to ensure proportionality is premised on the notion that it is an example of this same technique using available sentencing tools to ensure that the victim surcharge does not produce disproportion. Although nominal fines can appear to be a contrivance, it is not uncommon for courts to use them to achieve just outcomes. They have been used, including by appellate courts, as a means to recognize time served in custody as a sufficient sentence (R. v. Perkins, [1980] B.C.J. No. 263, [1980] 4 W.W.R. 763 (C.A.); R. v. O'Neill, [2013] O.J. No. 1899, 2013 ONCJ 216), or standing alone to achieve proportionality in cases where an offence is heavily mitigated (R. v. Oliver, [1990] N.J. No. 175 (C.A.); R. v. Roe, [1948] M.J. No. 8, [1949] 1 D.L.R. 660 (C.A.), revd in part without disturbing the sentence R. v. Roe, [1949] S.C.R. 652, [1949] S.C.J. No. 31; R. v. Hutt, [1976] B.C.J. No. 1286, [1976] 4 W.W.R. 690 (C.A.); and see R. v. Hunt, [1977] N.J. No. 179, 12 Nfld. & P.E.I.R. 262 (C.A.), where Furlong J.A. suggested that a nominal fine would have been preferable to the sentence imposed)).

[107] After the Crown argued before me in this case that this is an appropriate sentencing device to avoid disproportion, if the victim surcharge is indeed a sentence, it was Mr. Konyer who suggested before me that using nominal fines to achieve proportionality is unprincipled. He urged that I should not permit the mandatory impact of this sentencing tool to be masked in this way and thereby save a defective provision.

[108] Mr. Konyer may, of course, be right and that using nominal fines is inappropriate. A case to that effect can be made. In R. v. B. (P.J.), [1999] N.J. No. 290, 141 C.C.C. (3d) 290 (C.A.), at para. 42, the court commented that it is improper to reduce a sentence that would otherwise be imposed since it "can only have the effect of negativing the explicit direction of Parliament". In R. v. Saint Amand, supra, the Ontario Court of Appeal overturned a manifestly inappropriate three-month sentence for three armed robberies the trial judge used to gut the impact of the mandatory sentences that applied. The Ontario Court of Appeal said, at para. 10, that the judge was in error to "clearly frustrate the will of Parliament and [by] completely negating the very purpose and object of Parliament". The same thing happened in R. v. Big Crow, [2007] A.J. No. 1370, 2007 ABCA 401. It is entirely possible that appellate courts could take a similar view, and find that reducing the victim surcharge to mere cents by using nominal fines frustrates the clear intent of Parliament to ensure meaningful accountability.

[109] It is important to recognize, however, that other appellate courts have done exactly what R. v. B. (P.J.) criticizes. I have described them above. And in the last two cases, R. v. St. Amand, supra, and R. v. Big Crow, supra, the trial judges expressly admitted that they were trying to evade the impact of rules they considered to be unfair. There is a difference, in my mind, between structuring a sentence to evade a binding rule as these judges admitted to, which is clearly impermissible, and structuring a sentence to ensure that when the minimum sentence imposed by law is applied, other binding rules of sentencing are respected to the extent possible. This includes using legal tools to structure an overall sentence that respects the principle of proportionality, which, after all, is a principle of fundamental justice that trial judges are constitutionally obliged to respect: R. v. Anderson, [2014] S.C.J. No. 41, 2014 SCC 41, at paras. 2-24; and see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6. The victim surcharge provisions hold that where a fine is imposed, the 30 per cent rule is to be used. Nowhere do they say that a minimum fine amount is required for this to be a valid victim surcharge. Using nominal fines to protect sentencing principles, and then applying the victim surcharge according to the statutory formula in place, is, in my view, entirely appropriate.

[110] This technique for achieving proportionality in sentencing impoverished offenders in the face of victim fine surcharges is not available in all cases. First, the victim surcharge applies to discharges but the law does not permit a fine, nominal or otherwise, to be added to a "discharge". A sentencing judge imposing a discharge therefore has no choice but to impose a set victim surcharge of $100 or $200 per charge, regardless of its impact on sentence proportionality. Second, s. 731(1)(b), as currently interpreted by binding authority in Ontario, including R. v. Blacquiere, [1975] O.J. No. 443, 24 C.C.C. (2d) 168 (C.A.), prohibits judges from imposing fines, nominal or otherwise, for charges that are being sentenced by a combination of incarceration and probation. In spite of the persuasive analysis in R. v. Cloud, supra, I am bound by that decision as are other courts in Ontario. As presently instructed, Criminal Code s. 731(1)(b) prevents a nominal fine from being used where a fine and probation are combined for an offence, thereby precluding the use of nominal fines to ameliorate the disproportion that the victim surcharge can cause.

[111] In this case, however, my instant task is the particularized inquiry involving Mr. Michael. I did not impose nominal fines on Mr. Michael because, given the Charter challenge, it was not clear that this would be needed to remove the disproportion caused by the victim surcharge. By happenstance, and even though I felt it necessary to impose incarceration and probation for a number of the offences, I could in fact have added that fine without violating the prohibition in s. 731(1)(b). When I sentenced Mr. Michael for the first two sets of offences, I did not have to sentence him to jail because he had already served sufficient time in custody, pre-sentence. There was therefore no legal impediment to adding nominal fines for those charges to the probationary sentences I imposed. With respect to the third set of offences, I had only a few weeks before put Mr. Michael on the necessary rehabilitative terms of probation for a two-year period. A new probation order would have been redundant, again leaving it open to me to have imposed nominal fines for those offences to ameliorate the disproportionate hardship of the victim surcharge, along with the jail sentences I imposed.

[112] My ability to have used nominal fines in his case drives me to the following conclusion with respect to the particularized inquiry. Simply put, I cannot find Mr. Michael's sentence to be grossly disproportionate because I could have used nominal fines to alleviate the burden of the victim surcharge that I have just described, and I believe I still can since I am still seized with his sentence. It is therefore not the law that has caused a grossly disproportionate sentence in his case that I have described. It is the fact that I have not yet exercised my discretion to have done so.

C. The reasonable hypothetical

[113] I am obliged, however, to go on and consider whether s. 737 could produce gross disproportionality in the case of a reasonable hypothetical case. The Crown has cautioned that in fashioning a reasonable hypothetical case, I must contemplate a hypothetical that bears resemblance to the case before me and that the reasonable hypothetical case must be one that must "focus on imaginable circumstances which could commonly arise in day-to-day life": R. v. Goltz, [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, at para. 69. In my view, this can easily be achieved by starting with Mr. Michael's case. The facts of his case not only commonly arise, they are the stock in trade of the Ontario Court of Justice "guilty plea" court in Ottawa. All that need be done with Mr. Michaels' case is to imagine that, by chance, he had not already served the appropriate time in jail before he pled guilty before me on the first two set of charges, and that all three sets of charges were before me simultaneously. I would have been duty bound as a judge to sentence Mr. Michael to jail on those charges as the principles of sentencing required it, and I would have been duty bound to seek his rehabilitation through a probation order. Having done so, I would have then been prevented from adding a nominal fine to those charges for which jail and probation were ordered because it is illegal to sentence someone to jail, probation and a fine on the same charge. I would therefore have had no choice but to impose the victim surcharge on him using the $100 per offence tariff required by law. In my view, this reasonable hypothetical would cause gross disproportion in the fashion I have described above, thereby violating s. 12.

[114] I am mindful in arriving at this position that in R. v. Nur, supra, at para. 142, the court directed that ordinarily in constructing reasonable hypotheticals, courts must look at the "conduct that includes all of the elements of the offence that triggers the mandatory minimum, but no more. Characteristics of individual offenders, whether they aggravate or mitigate, are not part of the reasonable hypothetical." In this case, however, I am not conjuring up a mythical character to enhance the impact of the sentence, which is what I understand this direction to be preventing. I am using the very offender bringing the challenge. Moreover, that admonition does not appear to fit the case of a mandatory victim surcharge because the mandatory victim surcharge has no "elements of the offence". It is a roving punishment and must be evaluated as such. I am therefore of the view that I am permitted to look at the proportionality of the sentence realistically, by testing the proportionality of the sentence using the entire concept of cardinal proportionality and not just the "seriousness of the offence".

[115] Section 737 of the Criminal Code fails the reasonable hypothetical test and thereby prima facie violates s. 12 of the Charter.

D. Is s. 737 justified under s. 1?

[116] In R. v. Nur, supra, at para. 178, Justice Doherty observed for the court that, "Given the very high bar set for finding that a sentence constitutes cruel and unusual punishment, I find it very difficult to imagine a sentence that clear that high bar could ever qualify as a reasonable limit demonstrably justified in a free and democratic society." He therefore did not go through the usual Oakes test. In my view, it is not only difficult to justify a s. 12 breach using s. 1. It is impossible. I say this because the Oakes test requires that before a law is constitutionally valid it must be proportionate. How can a grossly disproportionate law satisfy the proportionality test? It cannot. Section 1 does not save s. 737.

III. Section 7

[117] Mr. Michael also brought a s. 7 challenge to the victim surcharge. Given the conclusion I have arrived at, it is not necessary that I address these submissions.

IV. Holding

[118] The victim surcharge provided for by s. 737 violates s. 12 of the Charter and is not saved by s. 1. I therefore declare it to be of no force or effect. I also want to make clear that if I am wrong about the availability of the nominal fine to achieve proportionality, I would have struck s. 737 down under the particularized inquiry.

Application granted.