Ontario Court of Justice

R. v. Martin Flaro R. v. Jennifer Travis R. v. Mark Bodin R. v. Allan Ashton R. v. B.T.

Reasons for Sentence – Victim Fine Surcharge

SCHNALL, J.:

Introduction and Legislative Background

On October 24th, 2013, amendments to section 737 of The Criminal Code of Canada came into effect.

Since that date, I have held on a number of occasions that the amendments constitute a breach of rights under section 12 and section 7 of the Charter of Rights and Freedoms (the Charter) and are thus unconstitutional.

Section 737 deals with the imposition of a victim fine surcharge ("VFS").

The amendments removed from the judge the ability to exercise judicial discretion in the imposition of the VFS; increased the percentage calculation of the VFS on a fine, from 15% to 30%; and increased the quantum of the VFS to be imposed where there was no fine, from $50.00, to $100.00 for a summary offence, and $200.00 for an offence proceeded with by indictment.

Time to Pay

The time when the VFS is payable is the same as that for a fine imposed.

However, where no fine is imposed, the egregious consequences of these mandatory provisions are exacerbated by the provisions of the Order in Council (Ontario), dated December 8, 1999, made pursuant to section 737(4). This provides that where no fine is imposed, the VFS for a summary conviction offence shall be payable within 30 days from the date it is imposed; the VFS imposed for an offence punishable by indictment shall be payable within 60 days after the surcharge is imposed. No consideration is given as to whether these time frames are reasonable in the circumstances of an individual offender.

Section 737 of the Criminal Code

The amended section 737 now reads as follows:

Victim surcharge

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.

Amount of surcharge

(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.

(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.

Time for payment

(4) The victim surcharge imposed in respect of an offence is payable at the time at which the fine imposed for the offence is payable and, when no fine is imposed, within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge.

Exception

(5) Repealed

Reasons

(6) Repealed

Amounts applied to aid victims

(7) A victim surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.

Notice

(8) The court shall cause to be given to the offender a written notice setting out

(a) the amount of the victim surcharge;

(b) the manner in which the victim surcharge is to be paid;

(c) the time by which the victim surcharge must be paid; and

(d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.

Enforcement

(9) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular,

(a) a reference in any of those provisions to "fine", other than in subsection 734.8(5), must be read as if it were a reference to "victim surcharge"; and

(b) the notice provided under subsection (8) is deemed to be an order made under section 734.1.

Section 736 does not apply

(10) Repealed

Mandatory Nature of the Amendments

The mandatory nature of the amendments is underscored by the provisions of section 734.1(2) which prohibits the court from considering an offender's ability to pay where the punishment includes a minimum fine.

Since October 24th, 2013, a number of accused have appeared before me and pleaded guilty to charges where the dates of the offences post-date these amendments.

In each of these five cases, I have held that the amendments are unconstitutional, as being in breach of section 12 of the Charter, and potentially also section 7, and I declined to impose the mandatory VFS and have waived it.

In a number of these, in November, I gave oral reasons as to why I declined to impose the VFS. I now follow up those oral reasons with these written reasons, including as well the cases I dealt with subsequently, where I relied on my previous oral decisions.

In none of these cases did the issue of the VFS form part of the joint submission on sentence.

The Five Cases

These cases, in which all offences post-date October 24th, 2013, are the following:

R. v. Flaro

On November 14, 2013, Mr. Martin Flaro pleaded guilty to two counts of breaching his recognizance: a curfew breach and a residency breach. The Crown elected to proceed by summary conviction.

At 3:12 am, the police found Mr. Flaro riding his bicycle on a downtown street, with two bags. He was well past his curfew and provided an address other than the one where he was to reside.

He had a very dated record.

Following a joint submission as to sentence, he was sentenced to one day in jail, recommended to be deemed served, following 16 days of pre-sentence custody.

Mr. Flaro is in receipt of Ontario disability benefits (ODSP). He is 50 years old and single. He was out in the very early morning hours collecting beer cans from garbage bins, to try to get some change to supplement his disability income. The VFS would have been $200.00, payable within 30 days.

R. v. Travis

On December 14th, 2013, Ms. Jennifer Travis pleaded guilty to three offences, with offence date of November 2nd: a count of domestic assault; damage to the complainant's property; and a breach of her undertaking not to associate with the complainant. The Crown elected to proceed by summary conviction.

She had one dated conviction of an unrelated nature.

Following a joint submission, the passing of sentence was suspended and she was placed on probation for 12 months.

Ms. Travis is 31 years of age. She suffers from bipolar disorder, is currently in receipt of Ontario Works benefits, receiving net benefits of $200.00 per month. She supports her 15 year old child. The mandatory victim fine surcharge would have saddled her with a debt of $300.00, payable within 30 days.

R. v. Bodin

On December 12, 2013, Mr. Mark Bodin pleaded guilty to four charges: a November 20th offence of damage under $5,000.00 to his father's door; a December 8th offence of breaching the residency term of his recognizance; and two December 9th charges, damaging a police cruiser when he was taken into custody and possession of a very small amount of cocaine. He had no criminal record. The Crown elected to proceed by summary conviction.

Following a joint submission as to sentence, sentence was suspended and he was placed on probation for 12 months.

Mr. Bodin is 21 years old. He suffers from an acquired brain injury as a result of a motor vehicle accident in 2009. He takes medication to deal with psychotic episodes and has spent periods of time on the psychiatric ward.

He lived on the proceeds of his motor vehicle accident benefits and those have been depleted. He has no income.

The mandatory victim fine surcharge provisions would have saddled him with a debt of $400.00, payable within 30 days.

The quantum of VFS is entirely dependent on the Crown's election. In the case of Mr. Bodin, had the Crown elected to proceed by indictment, the VFS would have been $800.00, payable within 60 days, compounding the arbitrary and punitive consequences of these provisions.

R. v. Ashton

On December 23rd, Mr. Allan Ashton pleaded guilty to breaching the residency term of his Undertaking. He was to reside at the Salvation Army Men's Mission, a shelter for the homeless. The Crown elected to proceed by summary conviction.

Mr. Ashton had a criminal record and had spent 7 days in pre-plea custody. I declined to follow the joint submission of an additional 15 days and imposed a period of 5 days in jail.

Mr. Ashton is 45 years of age. He suffers from mental health issues. He moves from one shelter to another from time to time.

He has no income and subsists on charitable donations. The mandatory victim fine surcharge would have saddled him with a $100.00 debt, payable within 30 days, an amount he could never reasonably be expected to be able to pay.

R. v. B.T.

On December 23rd, B.T. pleaded guilty to one charge of breaching her undertaking. The Crown elected to proceed by summary conviction.

Following the joint submission as to sentence, the sentence was suspended and she was placed on probation for 12 months.

B.T. is 38 years old. She is unemployed and has been for some period of time. She said her focus is on regaining custody of her three children, who are presently in the care of the Children's Aid Society. She was clearly under severe stress when she appeared in court, represented by duty counsel.

She subsists on $300.00 per month from Ontario Works benefits. The surcharge would have imposed a debt on her of $100.00, payable within 30 days.

Common Circumstances

In all these cases, and in many others that come before the court, the defendants are surviving on net benefits which fall below the poverty line.

Judicial Role and Constitutional Protections

It is not the role of the judiciary to question the decisions of Parliament in its legislative function, nor to impose sentences that on their face may appear to undermine the purpose of the legislation or the public's confidence in the criminal justice system.

Rather, it is the role of the judiciary to ensure that the rights of an individual, as enshrined in the Constitution and the Charter are protected.

Nature of the Victim Fine Surcharge

By definition, in section 716, the VFS is in the nature of a fine, being a "pecuniary penalty".

Some would argue it is also in the nature of a tax, which leads to other issues to question the constitutionality of the provision. I endorse that view as well, and would have held that the amendments are unconstitutional on that basis as well, but I leave it to other cases to deal with that argument in more detail.

It is a form of punishment.

Section 12 of the Charter – Cruel and Unusual Punishment

The imposition of a fine, as a punitive measure, imposed without the ability to scrutinize each case on its own merits is unconstitutional, where it results in a sentence which is grossly disproportionate to the offence and the offender's circumstances. It is contrary to section 12 of the Charter.

It would outrage the sentiments of an informed public if it were to realize the arbitrary nature of this mandatory provision which fails to consider the individual circumstances of the offender. An offender with substantial income is dealt with in the same way as an impecunious offender, with no consideration of ability to pay. In the cases I referred to above, 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.

Case Law

The Ontario Court of Appeal in R. v. Smickle and in R. v. Nur (2013 ONCA 677) held that a mandatory minimum sentence of 3 years for a first offence conviction under section 95 was unconstitutional, because it constituted cruel and unusual punishment, and thus was a breach under section 12 of the Charter:

Everyone has a right not to be subjected to any cruel and unusual treatment or punishment.

The leading cases on the issue of constitutionality of mandatory minimum sentences deal with punishment in the form of incarceration. The principles should be no less applicable to other forms of punishment such as the VFS.

In the trial decision in R. v. Smickle 2012 ONSC 602, [2012] O.J. No. 612 (Ont. S.C.), (upheld on appeal Ontario Court of Appeal 2013 ONCA 678, [2013] O.J. No. 5070 on the constitutionality issue), Justice Molloy in paragraphs 33 through 47, undertook a detailed review of what constitutes cruel and unusual punishment, and reviewed the leading cases and the analysis adopted in those cases. She determined that the reference to a minimum punishment of imprisonment for a term of, "in the case of a first offence, three years" as set out in section 95(2)(a)(i) of the Criminal Code is inconsistent with the Charter of Rights and Freedoms and was of no force or effect and was not saved by section 1 of the Charter.

While Smickle and Nur are distinguishable on their facts from the case before me, as they deal with mandatory minimum prison sentences for gun-related offences, the analysis as to what constitutes cruel and unusual punishment is equally applicable to the cases before me in dealing with "punishments".

As noted by Justice Molloy in Smickle (paragraph 39 and following):

The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith, [1987] 1 S.C.R. 1045. To be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable".

Test for Gross Disproportionality

The cases have set out a number of factors for the court to consider if there has been a breach of section 12, that is whether the sentence is grossly disproportionate:

In R. v. Smith, [1987] 1 S.C.R. 1045, the Supreme Court identified four factors:

(1) the gravity of the offence; (2) the personal characteristics of the offender; (3) the particular circumstances of the case; and (4) the actual effect of the punishment on the offender.

(pages 1073-1074)

Four additional principles were set out and endorsed in R. v. Goltz, [1991] 3 S.C.R. 485, at page 500:

Although not in themselves decisive to a determination of gross disproportionality, other factors which may legitimately inform an assessment are whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, whether there exist valid alternatives to the punishment imposed, and to some extent whether a comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion.

Tarnopolsky Criteria

Lamer, J., in Smith, at pages 1061-1070, had reviewed the judicial history of the interpretation of "cruel and unusual punishment" in which the test applied tended towards whether the punishment was so excessive as to "outrage standards of decency". He included in that review, at page 1068, a reference to a 1978 article by Professor Walter Tarnopolsky (as he then was). The reference is to "Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance?" (1978) 10 Ottawa L. Rev. 1 at 32-33. Professor Tarnopolsky listed nine criteria applied by various courts in determining what makes a punishment "cruel and unusual".

These nine criteria listed by Professor Tarnopolsky are:

(1) Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim?

(2) Is it unnecessary because there are adequate alternatives?

(3) Is it unacceptable to a large segment of the population?

(4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards?

(5) Is it arbitrarily imposed?

(6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution?

(7) Is it in accord with public standards of decency or propriety?

(8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness?

(9) Is it unusually severe and hence degrading to human dignity and worth?

Informed Public Standard

Any reference to the community's, or population's, or the public's sense of standards of decency, or fairness must of course mean a fully informed and educated public. This would mean, referring to R. v. Johnson, 2011 ONCJ 77 at para. 151:

a reasonable person, one who understands the purpose of the Charter, the nature of the offence, the circumstances of the case, the fact that the punishment is imposed without having any regard for the circumstances of the offender which may vary greatly along a spectrum.

Application to the Mandatory VFS

Because the imposition of the VFS is mandatory, there is no consideration of the various factors referred to in Goltz, and in Smith and those listed by Professor Tarnopolsky, on a case by case basis. The circumstances of all the defendants in the cases before me would fail to satisfy these various factors and principles.

Any provision that fails to take into account a defendant's mental health status and ability to pay, fails to satisfy the factors enumerated above and constitutes cruel and unusual punishment, as being grossly disproportionate.

Remedies Under the Criminal Code

Is there a remedy provided in the Criminal Code that could possibly ameliorate the consequences of the amendments to a level below "grossly disproportionate"?

The provisions of section 737 as amended, are not saved by section 1 of the Charter.

Moreover, it is not an answer to note that an individual can apply to the judge for an extension of the time to pay, under section 734.3. This requires additional attendances at the court house to file applications, a tedious and possibly overwhelming task for those who suffer from cognitive or mental health limitations, knowing all the while that they will never be in a position to fulfill their debt obligations, and have to apply repeatedly.

This imposes additional mental stress on these individuals.

Section 734.5 (enforcement relating to issuance of a licence or permit) and Section 734.6 (civil enforcement) are not likely going to be relevant for individuals such as the five defendants in the cases before me. Where those methods of enforcement are applied, this would create even harsher penalties for impecunious persons or those in receipt of public benefits.

Sentencing Principles and Judicial Discretion

Sections 718 through 718.2 set out principles of sentencing to guide the court in imposing a fit and proper sentence.

However, section 734(2) precludes the court's ability to consider an offender's ability to pay a monetary penalty where the punishment for an offence includes a minimum fine. Otherwise, the court would have to be satisfied of the offender's ability to pay a fine within a reasonable time. The provisions of the Order in Council, referred to above, imposing an automatic 30 or 60 days within which to pay a VFS, would appear to be inconsistent with this sub-section.

For example, a conviction under section 253(1)(a) or (b), would attract a minimum fine of $1,000.00. In imposing the fine, the court is precluded from considering the offender's ability to pay, but can exercise its discretion in assessing a reasonable time to pay the fine. No such discretion is afforded by the Order in Council where only the VFS is imposed, and no fine.

The abolition of that discretion results in harsh penalty on defendants who live on benefits below the poverty line or have insufficient income to meet their own needs and those of their dependants.

Fine Option Program

Section 736 of the Criminal Code (The Fine Option Program) provides that an offender may discharge a fine, in whole or in part, by earning credits for work performed in a program established in the province for that purpose.

Prior to the enactment of the amendments to section 737, section 737(10) provided that the fine option program provisions of section 736 did not apply. With the repeal of section 737(10) on October 24th, the provisions of section 736 now do apply. This means that where the Lieutenant-Governor of a province passes regulations under section 736(1), an individual can enter into the work program to pay off a fine and/or VFS. This provides neither comfort nor solution to Ontario offenders, however, as there are no such regulations in place in Ontario (nor in Newfoundland and Labrador).

Moreover, many defendants who appear in our courts (including the five in the cases before me) do not have the ability to perform work, for a number of various reasons, including mental health issues.

Breach of Section 7

In addition to constituting a breach of section 12, the new mandatory provisions also potentially expose a defendant to incarceration, and thus constitute a potential breach of rights under section 7 of the Charter.

Section 734(4) of the Criminal Code provides that in default of payment of a fine, a term of incarceration is deemed to be imposed. Section 734(5) provides a formula that calculates the number of days to be served in jail in default of payment.

Prior to issuing a warrant for committal of an offender for failing to pay a fine (including VFS), the court must be satisfied of the offender's refusal to pay the fine, under section 734.7(1)(b)(ii). This would require a hearing. Again, this places an undue burden on those members of society who have neither the financial nor individual personal resources or capability to defend themselves at these hearings.

It is outside the scope of my role here to comment on the additional expense that would be incurred by the enforcing authorities in collecting these unpaid surcharges, and in conducting these hearings.

Conclusion

It would only make good sense to conduct such an inquiry prior to imposing a VFS as the court does prior to imposing a fine, and thus to allow the court to exercise its discretion, rather than exposing these defendants to the harshness of a mandatory punitive system, increasing the expense to the criminal justice system in court time, administrative costs, duty counsel fees, and so on, let alone the potential cost to the public's confidence in a system that imposes a harsh punishment that may never be enforceable.

Released January 6, 2014

E. Schnall