Court Information

Court: Ontario Court of Justice Location: L'Orignal, Ontario Judge: Jean Legault

Parties

Her Majesty the Queen (Respondent)

v.

Daniel Larocque (Applicant)

Counsel

For the Applicant: Me Yves Jubinville

For the Respondent (Federal Crown): Me Luc Boucher Me Tim Radcliffe Public Prosecution Service of Canada

For the Respondent (Provincial Crown): Me Julie Bourgeois Me Dallas Mack Me Julien Lalande Me Louise Tansey

Decision on Application Challenging the Constitutionality of the Victim Surcharge under Section 737 of the Criminal Code

Introduction

[1] Daniel Larocque brings an application alleging that the imposition of the victim surcharge (SAC) violates his rights guaranteed under sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms.

[2] This application raises the following questions:

a. Is the SAC a punishment or an ancillary order in the nature of general compensation?

b. If the SAC is a punishment, is this punishment cruel or unusual within the meaning of section 12 of the Charter?

c. If the SAC is an ancillary order, does this order violate the applicant's rights guaranteed under sections 7 or 15 of the Charter?

d. If there is a violation of the applicant's rights guaranteed under sections 7, 12, or 15 of the Charter, is this violation justifiable under section 1 of the Charter?

e. If this violation cannot be justified under section 1, what remedy can this Court apply under section 52 of the Charter?

Is the SAC a Punishment or an Ancillary Order in the Nature of General Compensation?

[3] The applicant and the respondents, the federal and provincial Crown, submitted precise and complete memoranda. I file them as exhibits 7, 8, and 9 respectively to complete the record. Having reviewed the arguments and memoranda presented, I accept the argument of the federal Crown and conclude that the SAC is a punishment. I explain my reasoning:

[4] On October 24, 2013, the victim surcharge regime was revised and several amendments came into force. These amendments resulted from various statistical studies conducted regarding the victim surcharge. These studies demonstrated that there was a low rate of imposition of the SAC as well as an absence of documentation indicating that the offender had discharged their burden of establishing undue hardship.

[5] Through these amendments, the exemption for undue hardship, previously provided in subsection 737(5) of the Criminal Code, was repealed. The imposition of the surcharge is now mandatory.

[6] The victim surcharge was increased to 30% of the fine imposed, and when no fine was imposed, to $100 for an offence punishable on summary conviction and $200 for an offence punishable by indictment. The SAC is thus closely linked to the fine imposed by the court as a financial penalty justified by the principles of sentencing.

[7] The principles of sentencing are set out in section 718 of the Criminal Code. More particularly, I rely on paragraphs (b), (e), and (f). I cite these paragraphs:

718 The fundamental purpose of sentencing is to contribute, along with other initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just sanctions that have one or more of the following objectives:

(b) to deter the offender and other persons from committing offences;

(e) to provide reparation for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[8] In my view, the new regime concerning the SAC is a demonstration of the legislator's intention to implement its objectives under section 718 of the Criminal Code, namely: 1) the offender's awareness of the harm caused to victims and the community, and 2) assistance to victims of criminal acts. This is what the Honourable Peter McKay emphasized in a Question to the Government on December 6, 2013, and I quote from paragraph QQ:

The changes to the victim surcharge provision are based on work the government has already done to ensure that those who break the law are held fully accountable and are sentenced in a way that adequately reflects the seriousness of their actions and to ensure that victims have a voice in the criminal justice system. Sentencing has as an objective, in particular under section 718 of the Criminal Code, to ensure reparation for harm done to victims or to the community and to promote a sense of responsibility in offenders, in particular through recognition of the harm they have caused to victims and to the community. The changes made by the Victims Bill of Rights serve these objectives.

[9] Another factor is the fact that the Order in Council setting October 24, 2013 as the date of coming into force of the Victims Bill of Rights states under the heading "Objective" on page 2336 that a victim surcharge is an additional sanction imposed at the time of sentencing to offenders found guilty.

[10] Furthermore, section 737, the SAC, is found in Part XXIII of the Criminal Code entitled "Sentencing."

[11] The SAC pursues the following sentencing objectives:

a. deterrence, as it is punitive, like a fine, by imposing a financial penalty and depriving the offender of that sum;

b. rehabilitation by raising the offender's awareness of the impact of their crime on victims;

c. compensation, as the sums collected through the SAC will be allocated to assistance for victims of criminal acts.

[12] The achievement of these sentencing objectives through the imposition of the SAC falls within the definition of a punishment established by the Supreme Court in R. v. Rodgers, 2006 SCC 15, at paragraph 63, which I cite: "In general, it seems to me that a consequence constitutes a punishment when it is part of the sanctions to which an accused is liable for a given offence and when it is consistent with the objective and principles of sentencing."

[13] Although the wording of this sanction provided in section 737 of the Criminal Code in English is "victim surcharge," in French it is "suramende compensatoire." A fine is a punishment.

[14] Finally, subsection 737(4) provides that if the circumstances justify it and if the offender has the ability to pay, the court may impose a victim surcharge greater than that provided in subsection (2). The circumstances of the case and the offender's ability to pay have always been principles concerning the appropriateness of a fine as a just punishment. The SAC is in my view a punishment within the meaning of criminal law, and consequently, the constitutional analysis must be conducted in accordance with the principles governing the interpretation of cruel and unusual punishment under section 12 of the Charter and not under sections 7 or 15.

[15] The provincial Crown argues that the SAC is an ancillary order and not a punishment within the meaning of section 12 of the Charter. This argument was analyzed by my colleague, Justice Paciocco, in R. v. Michael, 2014 ONCJ 340, and I adopt his analysis at paragraphs 6 to 16, which rejects this position.

[16] If I am wrong in my conclusion that the SAC is a punishment and it is instead an ancillary order to the imposition of a sentence, it has the effect of increasing or imposing a financial penalty. I then rely on the analysis of Justice Paciocco in Michael, supra, at paragraphs 4 and 5 of that decision, and I quote:

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.

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 at 561; R. v. Rodgers 2006 CSC 15, [2006] S.C.J. No. 15 at para. 59. In Canada (Attorney General) v. Whaling 2014 CSC 20, [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 section 737, 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% 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.

Is the SAC a Cruel or Unusual Punishment within the Meaning of Section 12 of the Charter?

[17] In R. v. Smith, [1987] 1 S.C.R. 1045, at paragraph 54, the Supreme Court defines cruel and unusual punishment as follows:

The test to be applied in determining whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to adopt the language used by Chief Justice Laskin at p. 688 of Miller and Cockriell, supra, whether the punishment imposed is excessive in relation to what would have been appropriate. In other words, although the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

[18] In this decision, at paragraph 48, the Court reminds us of a fundamental principle:

This attitude of deference to the federal legislator has been adopted in many cases... To this end, the observations of Justice Borins in R. v. Guiller, Dist. Ct. Ont., September 23, 1985, unreported, provide a good example, at p. 15:

It is not for the court to pass judgment on the wisdom of the federal legislator with respect to the gravity of various offences and the different punishments that may be imposed on persons found guilty of committing them. The legislator enjoys broad discretionary authority to prohibit certain conduct considered criminal and to determine what the appropriate sanction should be. While the final determination as to whether a punishment exceeds the constitutional limits set by the Charter is properly a judicial function, the court should nevertheless hesitate to intervene in the carefully considered views of the legislator and should do so only in the most manifest cases where the prescribed punishment is excessive, compared to the punishment provided for other offences, to the point of constituting a breach of standards of decency.

[19] In order to determine whether a punishment is grossly disproportionate, I must evaluate several factors, none of which is more important than the other. These factors, as set out in R. v. Nur, 2013 ONCA 677, are as follows:

i. the gravity of the offence;

ii. the particular characteristics of the offender;

iii. the actual effect of the punishment on the offender;

iv. the sentencing objectives and principles of the SAC;

v. the existence of valid alternatives to the punishment actually imposed.

[20] The analysis of these factors concerning the SAC, which is indeed a minimum punishment, is flawed, as this sanction is imposed in the case of all offences, ranging from mischief to murder. The exercise of determining proportionality between the crime and the punishment is difficult.

The Gravity of the Offence

[21] On February 11 of last year, the applicant having pleaded guilty, I accepted a joint submission presented by the applicant and the respondents with respect to 7 counts. The question of imposing the victim surcharge was adjourned to allow argument on the constitutional application. The Crown prosecutors chose to proceed by summary conviction on these charges, so the total victim surcharge is $700, or $100 per count.

[22] The summaries of facts concerning these offences are the subject of exhibits 1 to 4 filed at the time of sentencing. I summarize the facts:

a. On December 4, 2013, the applicant committed the offence of mischief provided in section 430 of the Criminal Code by damaging the door and door frame of Éric Brunet;

b. He also committed assault against David Falker on two occasions contrary to section 266 of the Criminal Code;

c. He also uttered death threats against Éric Brunet contrary to section 264.1(1)(a) of the Criminal Code.

d. The applicant believed that his girlfriend was at Brunet's residence. He forced the door, breaking the door frame. He pushed Falker to reach Brunet. He struck Brunet twice in the head with a closed fist. He then made a gesture as if he had a rifle and said to Brunet: "Do you want me to kill you tonight?" and if he called the police, he would arrange for Brunet to be shot in the head. On December 5, he returned to the residence and put his arm under Brunet's chin; he pushed him against the wall. Again, he threatened him with death if anyone called the police. The sentence imposed for these offences was a conditional sentence of 6 months followed by a probation order of 18 months.

e. He admitted to being in possession of 10 morphine pills on December 13, 2013, contrary to section 4(1) of the Controlled Drugs and Substances Act. The applicant, who had been in custody since November 11, 2013, was searched on November 13 before his transfer to his bail hearing; he was in possession of 10 morphine pills. The sentence imposed was 2 days in custody already served coupled with a conditional discharge and one day of probation.

f. He admitted to causing damage to the walls of a cell on December 6, 2013, contrary to section 430(4) of the Criminal Code. Angry and frustrated, he damaged a wall in the cells here at the courthouse. When the police officer told him he would lay a charge, he replied by saying: "Lay charges, I don't give a damn." The applicant was credited with 6 days in custody already served, coupled with a conditional discharge and one day of probation.

g. On November 11, 2013, he committed assault against Ken Mackenzie contrary to section 266 of the Criminal Code. The applicant was the victim's tenant. He attempted to strike the victim with his head and threatened to kill the victim and his wife. The applicant was credited with 60 days in custody already served, coupled with a conditional discharge and one day of probation.

[23] The sentence imposed must be proportional to the gravity of the offence. Simple possession of morphine is a serious offence. Morphine is a so-called "hard" drug. This drug, like all hard drugs, has devastating effects on society. Not only for those who are addicted, but with regard to the element of criminality necessary for the distribution of these drugs. Offences of possession of narcotics are not victimless crimes. General and specific deterrence are legitimate objectives pursued by the imposition of a sentence as well as the rehabilitation of the offender.

[24] The conditional sentence of 6 months and a sentence of 60 days already served testifies to the seriousness of the other offences. The charges of threats and assault are offences of violence requiring a sentence that targets general and specific deterrence. However, within the range of offences of violence, these offences subject to the SAC are not among the most serious. It is rather the applicant's criminal record that justified the sentences imposed. He had been found guilty of assault in 2009 and two counts of assault with a weapon in 2011. He had served 21 days in custody before sentencing in 2011.

[25] Offences of mischief fall within the range of less serious offences where specific deterrence, reparation, and rehabilitation are the sentencing principles. Often these crimes are subject to alternative measures and are rarely tried; they generate minimal sentences. The sentences imposed for these offences in this matter were consistent with the principle of totality.

[26] The sentences of incarceration imposed, whether conditional or already served, respected the principles of denunciation and general and specific deterrence.

[27] In the applicant's case, the origin of his criminal behaviour stems from his mental health disorders coupled with the fact that he is a substance abuser. For the protection of the community in the future and to ensure his own rehabilitation, a period of probation was necessary. For the next 18 months, he must participate in any program or counselling relating to anger management, substance abuse, and other matters, as recommended by the Canadian Mental Health Association.

The Particular Characteristics of the Applicant

[28] Daniel Larocque, a 22-year-old man, is impoverished, a substance abuser, and suffers from mental health disorders.

[29] He is subject to placement under the care of the Children's Aid Society, as his mother could not control him. He completed grade 9.

[30] He is now a recipient of a disability pension. His housing and food are paid directly from this pension, leaving him $136 per month for expenses related to his maintenance, or approximately $4.50 per day. He has never had legitimate employment. In his affidavit, he states that he is financially unable to pay the SAC and that no payment deadline or extension would allow him to discharge these financial sanctions. He uses the money remaining to buy cigarettes to manage his substance abuse dependency. Furthermore, he buys deodorant and toothpaste.

[31] Since adolescence, he has consumed strong alcohol and narcotics, including cocaine, cannabis, ecstasy, and speed. He has never participated in a detoxification program. His affidavit testifies to the fact that he is dependent on several types of narcotics.

[32] The report of Dr. Brathwaite, forensic psychiatrist, prepared as part of an evaluation for criminal responsibility in April 2011, describes Mr. Larocque as follows:

Diagnostically, Mr. Larocque presents a mixed picture. There is evidence of personality difficulties particularly a mixture of borderline, paranoid, schizotypal and avoidant personality traits. There is also evidence of anxiety and dysthymia. His problems with impulse control and aggression while having some basis in neurocognitive deficits, also are created by psychosocial factors in his early environment.

[33] Dr. Mathias, forensic psychiatrist, following an evaluation regarding criminal responsibility relating to the charges subject to this application in January 2014, adopts the following conclusion: "The result is a man who bottles up his emotions and allows himself to explode his anger, especially when disinhibited or under the influence of drugs or alcohol."

[34] His psychiatric diagnosis confirms the existence of impulse control disorders, polysubstance abuse, antisocial personality disorder, borderline personality traits, psychosocial problems including his finances, and an overall functioning assessment of 50.

[35] The applicant represents the type of accused who frequently appears before the Ontario Court of Justice, impoverished, suffering from mental health disorders and substance abuse. The SAC is imposed on this type of individual as much as on the businessperson convicted of an offence of assault and mischief. However, one can easily conclude that the impact of this sanction is quite different on the offender that is the applicant.

The Actual Effect of the Punishment on the Applicant

[36] The sentence I have imposed to date, in its entirety, was rigorous but just. It respects in my view the principles of sentencing, and for these reasons I accepted the joint submission presented. The question that then arises is as follows: would the imposition of the total SAC of $700 in addition to this sentence render the sentence, in its entirety, cruel and unusual?

[37] I must evaluate the complete SAC regime to decide the impact of this sanction on the applicant. The enforcement measures are provided in sections 734.3, 734.5, and 734.7 of the Criminal Code. However, the analysis does not end there. I must evaluate the actual impact on the applicant.

[38] Due to his lack of education, his mental health disorders, his substance abuse, his disability rendering him unable to work, and the fact that he is impoverished, I am convinced on the balance of probabilities that Mr. Larocque cannot pay this SAC now and will not be able to pay it in the future. It is an exorbitant amount for him. I am of the view that the imposition of the SAC will have a real effect on the applicant in the long term.

[39] I accept that the applicant will never be incarcerated due to his inability to discharge the SAC, as the issuance of a warrant of incarceration is a matter of judicial discretion and protected by the Charter. The issuance of a warrant of incarceration is a last resort and applicable only if the offender refuses, without reasonable excuse, to pay the SAC. The inability to pay the SAC due to poverty is a reasonable excuse.

[40] The 2013 amendments made the enforcement of the victim surcharge subject to an alternative method of payment under section 736 of the Criminal Code. Seven provinces offer this alternative method of payment. However, the province of Ontario does not offer it, and thus the applicant is unable to avail himself of this option. I doubt, however, the applicant's ability to perform community work as he suffers from a disability preventing him from working.

[41] Granting him a deadline to pay the SAC or payment deferrals are not remedies for a person who has only $4.50 per day in his pocket to meet his needs. As Justice Paciocco points out in R. v. Michael at paragraph 81:

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.

[42] Any sentence imposed must come to an end, with the exception of a life sentence or an indeterminate sentence under the dangerous offender regime. A probation order cannot exceed 3 years. A sentence of incarceration has a fixed duration. A fine is imposed only if an offender has the ability to discharge it. The SAC as a punishment will have no end for the applicant, and this has long-term effects.

[43] These long-term effects of the SAC are described by Justice Paciocco at paragraphs 74 and 75 in R. v. Michael, and I adopt them as they concern the applicant:

[74] 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.

[44] The actual effect of the imposition of the SAC on the applicant is the fact that he must, in an attempt to pay this amount, refrain from attending to his health, his hygiene needs, and his clothing. The actual effect translates into a decrease in his quality of life, already very disadvantaged, and an increase in his financial stress identified by Dr. Mathias. This is what Justice Schnall highlights as an impact in R. v. Flaro, 2014 ONCJ 2:

this results in a sentence which is not only beyond excessive; the mandatory provisions impose a crushing debt on an individual who has no reasonable expectation of ever being able to pay; this constitutes cruel and unusual punishment. In those cases it forces a person to have to choose between buying food and paying the VFS.

The Sentencing Objectives of the SAC and Sentencing Principles

[45] The SAC responds to the sentencing objectives defined in section 718(e) and (f) of the Criminal Code. Given the financial aspect of this punishment, it achieves the objective of deterrence and reparation for harm to victims or the community.

[46] There is, however, the fundamental principle defined in section 718.1 of the Criminal Code that the sentence is proportional to the gravity of the offence and the degree of responsibility of the offender. The SAC is a punishment that is not consistent with this fundamental principle, as it applies to all offences, regardless of the gravity of the offence or the degree of responsibility of the offender.

[47] Furthermore, in imposing the SAC, the court does not weigh aggravating or mitigating factors according to section 718.2(a) nor the impact of an offender's Aboriginal origin.

The Existence of Valid Alternatives to the Punishment Actually Imposed

[48] If one of the purposes of the amendments to the SAC regime was to address the low rate of imposition of the SAC as well as an absence of documentation indicating that the offender had discharged their burden of establishing undue hardship, the obvious solution would have been for the Crown to argue for the imposition of the SAC before the court at the time of sentencing, and if the SAC was not imposed, to appeal those decisions.

[49] Furthermore, the legislator could simply have modified the test for exemption from undue hardship to excessive hardship. Furthermore, the legislator could have addressed the scenario in which the cumulative effect of the SAC was significant.

[50] Given these valid alternatives, I am then convinced objectively that a reasonable person would arrive at the conclusion that imposing a total of $700 in SAC on the applicant who is impoverished, a substance abuser, and suffering from mental health disorders, would produce the long-term effects identified above and that this would be excessive to the point of being incompatible with human dignity. The effect of this punishment is grossly disproportionate to what would have been appropriate. This is what Justice Paciocco emphasizes at paragraph 99 in R. v. Michael, of which this offender is indigent like the applicant:

[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% 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".

[51] To suggest that the actual impact of the SAC can be mitigated by applying the principle of totality to the sentence is in my view unfounded. This is what is suggested in R. v. Javier, rendered on August 7 of last year. The use of minimal fines to avoid the imposition of the victim surcharge, having reflected on it, frustrates the meritorious objectives of this sanction. This approach to minimum sentences was criticized in R. v. B.(P.J.), 1999 NJ No 290 and R. v. Saint-Amand, 1982 OJ No 481, a decision of our Court of Appeal.

[52] Furthermore, this method does not apply in all cases at the time of sentencing to an impoverished person, for example when imposing a conditional discharge or in circumstances where the court imposes a sentence of incarceration followed by a probation order.

The Reasonable Hypothetical Approach

[53] As to this approach, I can conclude that either the case of the applicant or that of Michael, decided by Justice Paciocco, are reasonable hypotheticals as I must base them on circumstances that are conceivable and occur in the everyday life of all.

[54] The facts in these two files occur every day in the Ontario Court of Justice, which decides more than 95% of the charges laid in this province. These are real disadvantaged people who unfortunately frequently find themselves in the criminal justice system.

[55] The SAC thus fails this exercise of the reasonable hypothetical and, consequently, violates section 12 of the Charter.

The Application of Section 1 of the Charter

[56] Is the violation of section 12 of the Charter in this case a reasonable limit on the applicant's right that can be justified in a free and democratic society?

[57] In R. v. Nur, the Court concludes that a punishment that violates section 12 of the Charter cannot be justified under section 1. This is because of the test under section 12 of gross disproportionality. I agree that the analysis under section 1 cannot justify a punishment that is excessive to the point of being incompatible with human dignity.

The Remedy

[58] The federal Crown prosecutor argues that the Ontario Court of Justice is not a court of inherent jurisdiction and therefore does not have the power to render a declaratory judgment regarding this law. He relies on Shewchuk v. Ricard, 28 D.L.R. (4th) 429, a decision of the British Columbia Court of Appeal.

[59] I am of the view that the only remedy available when there is a violation of section 12 of the Charter is a declaration, and that this power derives from section 52 of the Charter and not from the status of a court of inherent jurisdiction. I rely on R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paragraphs 65 and 74:

[65] The presence of s. 52(1) and its mandatory language suggests that the framers of the Charter intended that unconstitutional legislative provisions be rendered inoperative to the extent of their inconsistency, rather than remain in force subject to the granting of a discretionary remedy on a case-by-case basis: see Osborne, per Wilson J. Where the conditions for severance or a broad interpretation are met, courts may correct the inconsistency rather than strike down the provision entirely: Vriend; Sharpe. Where this is not possible — as is the case for an unconstitutional mandatory minimum sentence — the unconstitutional provision must be struck down. The matter is returned to the legislature to revise the law, if it chooses to do so, so that it no longer has unconstitutional effects. In either case, the remedy granted is that provided by s. 52, which renders the unconstitutional provision inoperative to the extent of its inconsistency. To the extent that a legislative provision is unconstitutional, it is not merely inapplicable in the case at hand. It is inoperative and, in effect, removed from the body of law.

[74] I conclude that a constitutional exemption should not be recognized as a means of remedying a cruel and unusual punishment prescribed by a legislative provision prescribing a mandatory minimum. A legislative provision prescribing a mandatory minimum found to be contrary to the Charter must be declared to be inconsistent with the Charter and, as such, inoperative in application of s. 52 of the Constitution Act, 1982.

[60] To reason otherwise, as the federal Crown prosecutor suggests, would require every impoverished person before the Ontario Court of Justice to bring an application such as this one to avoid a cruel and unusual punishment. This is illogical when the Supreme Court indicates that there is no constitutional exemption, a personal remedy, under section 52 of the Charter. Furthermore, this reasoning would allow the Crown to maintain the constitutionality of a law that violates section 12 of the Charter by deciding not to appeal the decision of unconstitutionality.

[61] The objectives pursued by the SAC are meritorious and necessary. In my view, it is the mandatory imposition of this SAC and its effects on an impoverished person that is incompatible with our values of human dignity. The only remedy that exists, however, is the order I render today stipulating that section 737(1) of the Criminal Code is null and inoperative pursuant to section 52 of the Charter.

[62] If I am wrong as to my declaratory power, what remedy must I impose? I then return to the basic existing principles concerning the imposition of the SAC: would the imposition of the SAC have a significant adverse effect on the applicant that is not compatible with his moral responsibility to society in general and to victims in particular?

[63] For all the reasons enumerated establishing the existence of a violation of the applicant's rights guaranteed under section 12 of the Charter, the answer to this question is yes. Otherwise, I waive the imposition of the SAC in this matter.

Jean Legault Ontario Court of Justice

Decision rendered September 4, 2014 at L'Orignal, Ontario.