Ontario Court of Justice

Date: 7 August 2014

Court File No.: Ottawa 14-F5713

Between:

Her Majesty the Queen

— AND —

Joebart Phillip Javier

Before: Justice Robert Wadden

Heard on: August 6, 2014

Ruling on Victim Surcharge released on: August 7, 2014

Counsel

Mr. Seguin — counsel for the PPSC

Ms. Guidolin, Duty Counsel — for the defendant

WADDEN J.:

Sentencing Decision

[1] The accused pleaded guilty to one count of possession of crack cocaine, contrary to s. 4(3) of the Controlled Drugs and Substances Act, committed on August 4, 2014. As of today he has served four days of presentence custody. After hearing submissions from counsel I determined that the proper sentence would be seven days jail. Giving enhanced credit for the presentence custody in accordance with R. v. Summers 2014 SCC 26, the proper sentence as of today is one day jail in addition to the presentence custody.

Victim Surcharge Issue

[2] Duty counsel, for the accused, has asked me to waive the imposition of the mandatory victim surcharge under s. 737 of the Criminal Code. Counsel referred me to the recent Ontario Court of Justice decision of R. v. Michael 2014 ONCJ 360, which declared the victim surcharge provisions under s. 737 to be of no force and effect, pursuant to s. 51 of the Charter of Rights and Freedoms.

[3] The decisions of R. v. Michael and R. v. Tinker 2014 ONCJ 208, [2014] O.J. 2056 (O.C.J.) (a decision released earlier this year which also declared s. 737 unconstitutional) are decisions of this same level of court and are therefore not binding on me. Counsel for the accused asks me to accept R. v. Michael as a persuasive authority and apply its finding that s. 737 is of no force and effect.

[4] In R. v. Michael the Court found that the imposition of the mandatory victim surcharge constituted cruel and unusual punishment contrary to s. 12 of the Charter.

[5] For the reasons set out below, I am not persuaded that I should follow the decision in R. v. Michael. In my view, s. 737 of the Code is valid legislation and I am obliged to impose the victim surcharge.

Analysis

Nature of the Victim Surcharge

[6] The victim surcharge is part of the sentencing regime of the Criminal Code. It is debatable whether the victim surcharge is a punishment, akin to a fine, or an ancillary order, such as an order for a DNA sample or a firearms prohibition. If it is accepted that it is a form of punishment, as was held in the Michael and Tinker decisions and is consistent with the language of the section, it must conform to s. 12 of the Charter, which states that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

[7] "Cruel and unusual" punishment is a phrase used to describe "a punishment that is so beyond what would be a proper or proportionate punishment as to be grossly disproportionate." (R. v. Nur, 2013 ONCA 677, para 64). It has been described by the Supreme Court as "'so excessive as to outrage standards of decency' and disproportionate to the extent that Canadians 'would find the punishment abhorrent or intolerable'" (R. v. Ferguson 2008 SCC 6, [2008] 1 S.C.R. 96 at para 14).

Statutory Framework

[8] Section 737 of the Code requires a court, at the time of sentencing, to impose a victim surcharge "in addition to any other punishment imposed." The amount of the surcharge is 30 per cent of any fine imposed, or if no fine is imposed $100 for each summary conviction offence or $200 for each indictable offence. The section reads as follows:

737. (1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.

(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is

(a) 30 per cent of any fine that is imposed on the offender for the offence; or

(b) if no fine is imposed on the offender for the offence,

(i) $100 in the case of an offence punishable by summary conviction, and

(ii) $200 in the case of an offence punishable by indictment.

Analysis of R. v. Michael

[9] The Court in Michael considered the case of an impecunious aboriginal offender who was being sentenced on nine relatively minor summary conviction offences. The cumulative amount of his victim surcharges would have been $900 if no fines had been imposed as part of his sentence. The Court found, however, that as it could choose to impose nominal fines in addition to jail or probation for Mr. Michael, the victim surcharge did not constitute cruel or unusual punishment in his particular circumstances. In other words, the judge found that it was open to him to impose a fine of as little as one dollar on each count, reducing the victim surcharge to virtually nothing. However, when the judge considered a hypothetical situation (as he was required to do under the s. 12 Charter analysis as set out in Nur) of an offender in a slightly different situation from Mr. Michael he found that a judge who was required to sentence an offender on multiple counts to both jail and probation would be prevented from imposing a fine and would therefore have to impose the statutory amount of $100 in victim surcharges for each offence, for a total of $900. The Court found that the imposition of $900 in victim surcharges would be cruel and unusual punishment and therefore declared s. 737 of the Code to be of no force or effect.

[10] The application judge in Michael did a thorough and detailed review of the law. I find, however, that I cannot agree with his conclusion that the mandatory victim surcharge in s. 737 is cruel and unusual punishment that is in breach of the Charter. I am of the view that there is sufficient flexibility available to a sentencing judge to avoid undue harshness in the application of this section.

Judicial Discretion in Imposing Fines

[11] Section 737(2)(a) states that the victim surcharge is calculated, first of all, as a per cent of any fine imposed. Fines may be imposed for virtually any summary offence in the Code (unless a discharge is granted). Although there are offences, such as impaired driving, that carry a mandatory minimum fine, most offences in the Code do not carry a minimum fine. It is usually open to the sentencing judge to impose a fine of any amount. When imposing a fine, the court must inquire into the ability of the offender to pay and only impose a fine that can be paid. Section 734(2) of the Code states:

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

[12] As noted in Michael, it is common that offenders, such as the hypothetical offender in Michael, will come before a court to be sentenced on several different offences. Sentencing on multiple offences is permissible pursuant to s. 725(1)(a) of the Code, which states that

725. (1) In determining the sentence, a court

(a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;

Sentencing on Multiple Offences

[13] A fine, jail and probation cannot all be imposed as part of a sentence on a single offence, according to s. 731(1)(b). The interpretation of the judge in Michael, citing the decision in R. v. Blacquiere (1979), 24 C.C.C.(2d) 168 (Ont. C. A.), was that this restriction would prohibit the judge sentencing the hypothetical offender from imposing a fine in addition to jail and probation.

[14] I do not agree that a judge sentencing the hypothetical Michael offender would be so restricted. The Blacquiere decision reviewed the sentence imposed on a single offence of assault causing bodily harm and is distinguishable from cases involving sentences on multiple offences, as contemplated in Michael. When sentencing on multiple offences the principle of totality requires the judge to determine a fit sentence for each offence and then to look at the total effect of the sentence to avoid an unduly harsh penalty. In this process, the court may adjust the sentence on each offence to come to a fair overall sentence. This process is described by the Manitoba Court of Appeal decision in R. v. Taylor 2010 MBCA 103. In the authoritative text Sentencing[1] the authors discuss the principle of totality and state that there is "no reason why this principle should be restricted to sentences of imprisonment. It applies equally to fines, restitution and other orders …"

[15] In considering the Michael hypothetical, it is my view that it would be within the power of the sentencing judge to adjust the individual sentences on the multiple offences to allow the judge to impose fines in addition to other penalties imposed. Indeed, it is arguable that with many counts to consider there are more options available to the trial judge to allocate presentence custody, jail and probation among the various offences so that no single count contains more than one element of jail or probation, yet the total sentence is fair, proportional and meets all the sentencing requirements. The sentencing judge would then be in a position to impose a fine on each offence to ameliorate the impact of the cumulative victim surcharges, if necessary to achieve a reasonable sentence.

[16] My understanding of s. 725 is that it refers to a discrete sentence being imposed for "each of [the] offences" before the sentencing judge. The prohibition in s. 731 on imposing a fine in addition to probation and jail applies in the context of sentencing a person convicted of "an offence". That prohibition applies to each individual offence of a multiple count information, but there is nothing to prevent the total sentence on a multiple count information (or on multiple informations, as contemplated in Michael) from containing all the elements of jail, probation and fine as long as no single count offends this rule. This does not offend the principles of sentencing, as it has been common practice for years that sentences consisting of jail and probation and monetary penalties, such as restitution orders and victim surcharges, have been imposed.

[17] It is my view that a sentence such as that hypothesized in Michael could be adjusted by the trial judge to fit the circumstances of an impecunious offender to avoid the imposition of onerous cumulative victim surcharges.

Single Offence Scenarios

[18] It would still be the case that the imposition of a modest fine is not available for an offender who is only dealing with one count on an information for which he will be sentenced to jail and probation, or an individual who will receive a discharge. In both cases the court could not impose a fine and would be required to impose the $100 victim surcharge. While this may be an onerous amount for some offenders to pay, and may cause stress and economic pressure, the requirement to pay $100 would not likely meet the threshold of being so "abhorrent and intolerable" as to be cruel and unusual punishment.

Constitutional Threshold

[19] Fundamentally, I am not persuaded that imposition of the victim surcharge, even in the form of hundreds of dollars as contemplated in Michael, would meet the high threshold set for a declaration of invalidity pursuant to s. 51 of the Charter. The impact of the victim surcharge on an offender is an economic consequence. For the truly impecunious, there is no risk of being sent to jail as a result of not paying the surcharge, as a court cannot issue a warrant of committal for non-payment if the offender is truly unable to pay, pursuant to s. 734.7(1)(b)(ii) of the Code. When considering whether the imposition of the victim surcharge is a punishment "so excessive as to outrage standards of decency" of Canadian society I consider that there are many people in society who are in the unfortunate situation of suffering economic hardship and loss. In the context of the criminal justice system, we frequently see victims of crime who have suffered financial loss in the form of medical costs, lost wages, stolen property or the expense associated with attendance at court. Although the financial stress of paying the victim surcharge may be onerous for some offenders I am not persuaded that it is cruel and unusual punishment that would result in a declaration of the invalidity of this legislation. The effect of such a declaration would be that the victim surcharge could not be imposed on any offender, even those who clearly have the means to pay. As was acknowledged in Michael, the victim surcharge legislation has the "laudable purpose" of raising funds to provide important victim services.

Conclusion

[20] I recognize that this issue has not been thoroughly litigated in the form of an application before me. These reasons only apply to the issue before me today – whether I should accept the R. v. Michael decision as persuasive authority that the mandatory victim surcharge provisions in s. 737 of the Code are of no force or effect. I am not persuaded by that decision. I am of the view that s. 737 of the Code remains valid and I will impose the victim surcharge.

Released: August 7, 2014

Justice Robert Wadden

Footnote

[1] Clayton Ruby, et. al., Sentencing, Eighth Edition (2012, LexisNexis Canada Inc.), at p. 51