Ontario Court of Justice

(East Region)

Her Majesty the Queen v. Sunshine Madeley

Before: Justice David M. Paciocco – Ottawa, ON

Reasons for Decision on Constitutional Challenges to Victim Surcharge

Released: March 1, 2016

Counsel

Ms. Louise Tansey …………………………………………………………….. for the Crown

Mr. Tobias Okada-Phillips …...………………………………………………….for the Accused

I. Introduction

[1] On December 1, 2014, 36 year old Sunshine Madeley shoplifted makeup and then offered a threatening gesture to a store clerk who had detected her. As a result of her conduct that day she was arrested and ultimately brought before me. She pled guilty to the offence of threatening to cause death contrary to Criminal Code section 264.1(1)(a), and to breach of probation contrary to section 733.1(1)(b) by not keeping the peace and being of good behaviour.

[2] These are not Ms. Madeley's first offences. She is an unemployed, drug-addicted 36 year old woman with a history of mental illness and homelessness and a long criminal record for prostitution related offences, thefts and breaches of court orders. She is obviously poor. She is supported by the "Ontario Disability Support Program," ("ODSP").

[3] When Ms. Madeley came before me for sentencing she brought a constitutional challenge to section 737 of the Criminal Code, the "victim surcharge" provision. Her issue is not with the general concept of a "victim surcharge," a sum levied against persons for each offence they are sentenced for to raise money for victim services. Her issue is with the current legislative design that makes the victim surcharge "universal," even where its imposition causes "undue hardship." She makes three constitutional complaints.

[4] First, she urges that, contrary to section 7 of the Charter, the mandatory victim surcharge infringes her "right to life, liberty and security of the person," in a fashion that does not accord with the principle of fundamental justice against "arbitrariness." Put in simple terms, she contends that since the objective of the victim surcharge legislation is to hold offenders accountable for their offence by establishing a fund to support victims, it is arbitrary to impose a levy on impecunious offenders who cannot pay. She also contends that it is arbitrary to require payment for "victimless crimes," in an amount that is not tethered to their offence, using an impractical regime where any money collected is to be used not for the victim of the offence but for victims generally.

[5] Second, she makes the related argument that the regime also offends the principle of fundamental justice against "overbreadth." In particular, she urges that the provision goes farther than required to achieve its purpose by imposing levies on individuals who cannot pay, including for offences that have no victims.

[6] Third, she urges that the mandatory victim surcharge provision contravenes equality rights assured under section 15 of the Charter. She complains that saddling individuals with debt obligations to hold them criminally accountable by requiring financial contributions to a fund for victim services has a disproportionate and discriminatory effect on those who cannot discharge their debt because they are disabled, in the sense defined by the Ontario Disability Support Act, 1997, c.25.

[7] The arguments before me did not address the application of section 1, given that evidence and submissions relating to section 1 are not material unless a prima facie breach has been found. In this decision I am therefore addressing only the prima facie breach claims made by Ms. Madeley.

[8] Although the Ontario Court of Appeal has yet to rule on the constitutional validity of section 737, there have been two decisions rendered by the Ontario Superior Court of Justice in summary conviction appeal cases addressing the constitutionality of the victim surcharge, R. v. Tinker 2015 ONSC 2284 and R. v. Larocque, 2015 ONSC 5407. I need to consider the reach of these cases, as summary conviction appeal court appeal decisions are binding in the Ontario Court of Justice.

[9] It is not contested that both the Tinker decision and the Larocque case overturned Ontario Court of Justice trial judgments that had found section 737 to be "grossly disproportionate," contrary to section 12, the Charter's "cruel or unusual treatment or punishment" provision. The Tinker and Larocque cases are therefore binding authority before me that section 737 does not violate section 12, the Charter's "cruel or unusual treatment or punishment" provision. By necessary implication, these decisions are also binding authority that section 737 does not contravene section 7's proportionality principle, which mirrors the "gross disproportionality" standard used in section 12. Since Ms. Madeley is not relying on the Charter's proportionality principles, however, these specific holdings do not resolve the challenges she is advancing.

[10] The decision in R. v. Larocque does go on, however, to address the very Charter complaints made by Ms. Madeley. Specifically, Justice Lacelle held that section 737 does not contravene section 7 of the Charter because it does not imperil "life, liberty or security of the person," and does not offend section 15's equality rights provision. The Crown has correctly pointed out, however, that these components of the Larocque decision are not binding before me because these findings were not technically appeal decisions, given that the trial judge in Larocque had not ruled on these issues: see R. v. Larocque, supra at para 102. The Crown urges, however, that I should follow Justice Lacelle's decision as persuasive.

[11] The Crown goes further with respect to the R. v. Tinker, supra, decision. Ms. Tansey contends that this decision is binding authority not only on the "gross disproportionality" issue, but also against the overbreadth argument advanced by Ms. Madeley. She relies specifically on a comment made by Justice Glass at para 36 where he said, "[n]or is the surcharge too broad a sweep against persons." Ms. Tansey urges that this is a finding that section 737 is not unconstitutionally overbroad.

[12] In fact, this comment by Justice Glass is not a binding decision on the over-breadth issue, for the same reason that the collateral aspects of the R. v. Larocque, supra, decision are not binding. As Justice Glass commented at para 12 of R. v. Tinker, supra, the trial judge in the Tinker litigation did not rule on the section 7 claims, having resolved the litigation before him under section 12. As a result, any section 7 holdings that Justice Glass may have made are not appeal decisions, and are not binding on me.

[13] Even though I am not bound by the collateral section 7 and 15 rulings offered in the Tinker and Larocque decisions, given the principles of stare decisis and judicial comity I should depart from the holdings made in these cases only if I am persuaded that they are wrong. In order to make that determination it is necessary that I consider the Charter complaints on their merits.

[14] In this case, Ms. Madeley's complaints are primarily poverty-based, including her section 15 claim, which is predicated on the impact of the mandatory victim surcharge on the mentally disabled, a group that, disproportionately, is poor.

[15] In light of this, it is prudent to begin by addressing, in general terms, the contention that is sometimes made that the victim surcharge imposed by section 737 cannot be unconstitutional based on poverty-related concerns because, in practical terms, it is effectively unenforceable against the poor. The state cannot get blood from a stone, it is said, and those who are unable to pay cannot be incarcerated for non-payment. Moreover, those who are too poor to be able to pay cannot afford licences and permits or pay for a record suspension application, altogether apart from the victim surcharge provision, leaving poor people untouched by the enforcement mechanisms that are in place to promote payment of the victim surcharge.

[16] In my view this thinking cannot be right. In effect, it amounts to an argument that the provision is constitutional because it does not work. The legislation has to be taken seriously, as Parliament no doubt intended it to be. Parliament created a mandatory legal obligation that courts are required, solemnly, to communicate to offenders in a criminal court as part of the sentence. It also created enforcement mechanisms that are intended to put pressure on those who have not paid. The impact of the law has to be understood in this context.

[17] Moreover, the impact of poverty on the ability to pay should be kept in context. Poverty does not always mean that nothing will be paid from the depressingly limited funds that the poor may have for their minimally tolerable support. The poor who make payments, either because they are ordered to, or under pressure from collection agencies, or through garnishment from their social safety net funds such as GST rebates, do so at the cost of compromising their personal welfare to a degree that other offenders do not. To be sure, for some offenders who have accumulated serial victim surcharges, the payment of the entire composite cost of the victim surcharge can literally be unattainable. Even these people may make partial payments that they cannot truly afford, contrary to the "no real consequence" thinking.

[18] Finally, "no real consequence" thinking fails to account for the impact that the law deems non-payment to have on the restoration and discharge by the offender of their debt to society. In my view, it is unfitting to discount the messages the law intends to send about accountability and unpaid debts to society, based on stereotypical assumptions that poor offenders are too unsophisticated to feel the weight of the messages that the justice system intends to communicate. As I say, those messages about payment before accountability is achieved, and about undischarged criminal debts owed to society, are meant to be solemn and impactful. It would be wrong, in my view, to disregard them when considering the impact the victim surcharge has.

[19] Of course, the constitutional fortunes of the victim surcharge do not turn on the broad conclusion that poverty does not inure people to the consequences of the victim surcharge legislation. The answers to the constitutional questions posed in this case are to turn on the studied application of the legal standards that apply to each of the constitutional provisions engaged. How, then, does each claim fare?

[20] After considering the law and the arguments before me on the information that is legally appropriate to consider, it is my holding that section 737 does not violate section 7 of the Charter.

[21] In order for a section 7 claim to succeed, the impugned law must imperil the life, liberty or security of the person of the accused. As indicated, the heart of Ms. Madeley's section 7 complaints relate to the impact of these provisions on her, because of her inability to pay. I am persuaded that section 7 does not imperil the life, or liberty of persons who are too poor to pay the victim surcharge, and while I hold the personal view that the victim surcharge does affect the "security of the person" of those who are too poor to pay, this is not obvious in light of the appellate findings that are binding on me that the effects of the victim surcharge are not "grossly disproportionate." I cannot therefore say with confidence that Justice Lacelle was wrong in holding that section 737 does not imperil security of the person, and I therefore feel impelled to follow her decision on that.

[22] Since section 737 does not compromise the life, liberty or security of the person of those who are poor, the poverty-based claims brought by Ms. Madeley flounder on the first leg of the section 7 test and must be dismissed.

[23] As for the remnant components of the section 7 complaints, that the provisions are arbitrary and overbroad because they apply whether or not an offence has a victim, and because they raise funds for victims generally and not just for the victim of the accused's crime, I simply do not agree. It is appropriate for Parliament to take the general position that criminal offenders should contribute to a fund for criminal victims, regardless of the nature of the offence or the presence of a victim in the case at hand. Such efforts are neither arbitrary nor overbroad.

[24] I feel otherwise about Ms. Madeley's section 15 Charter claim, which I take to be a class claim related to mental disability generally.

[25] I am persuaded that the victim surcharge has an adverse impact on the mentally disabled because of the class characteristic that mentally disabled persons are disproportionately poor. This makes the victim surcharge more onerous for the mentally disabled than it is for most other offenders, and leaves mentally disabled persons who cannot pay promptly because of their poverty, including Ms. Madeley, subjected to overlong exposure to the law's enforcement measures, and to the continued stigma and pressure of their undischarged criminal sentence.

[26] I am also persuaded that the effect of the victim surcharge discriminates against the mentally disabled. It exacerbates the historical economic disadvantage of many mentally disabled offenders and it leaves many of them under ongoing, if not perpetual, undischarged criminal sanction. In my view, through no fault of the offender, their lingering criminal debt can only feed the stereotypical link between mental disorder and criminality. Meanwhile, the enforcement mechanisms available to be used contribute to marginalization of mentally disabled persons, and exacerbate their exclusion from full participation in society. In short, when applied to poor, mentally disabled individuals, section 737 enhances the perception of prejudice and the experience of displacement.

[27] This is so, in my view, even though other sentencing provisions that have a disproportionate impact on enumerated or analogous groups are not generally discriminatory. Typically, sentencing provisions are not "discriminatory," even when affecting a protected group disproportionately, because discrimination is to be measured through the eyes of a reasonable person standing in the position of the claimant, and who is deemed to be fully informed, including about the nature of the law that is being applied. A reasonable person in the position of an over-represented aboriginal or black offender, for example, would understand when they are being sentenced that they are not being sentenced because they are aboriginal or black, and that their sentence is not an affront to the group. Instead, they would appreciate that they are being sentenced as individuals because they deserve the punishment imposed. Even a reasonable person sentenced to a minimum fine for impaired driving, including a characteristically poor aboriginal offender, or a poor mentally disordered offender, would not feel discriminated against by the fixed financial penalty. They would be deemed to know that this fine is tailored to their specific conduct, and is imposed as an individual penalty because it is deserved.

[28] In contrast, the victim surcharge is not an individual consequences imposed on particular offenders based on what they have done, in light of their personal circumstance. Instead, the victim surcharge is a general consequence imposed on all offenders regardless of what they have done, and regardless of their personal circumstances. Simply put, there is no ameliorative explanation for the victim surcharge that can remove the reasonable perception that its disproportionate adverse effect has a discriminatory impact on the group at large.

[29] Put more specifically, a reasonable mentally disordered offender, too poor to pay the victim surcharge promptly, or at all, would know that they are being subjected to the ongoing enforcement effects and pressures of a sanction that is untethered to proportionality, moral fault, or notions of just desert, simply because of their class-related poverty. That reasonable person would also understand that, unlike those who can afford to pay, they have not yet been held fully accountable in law for their offence, and that their debt to society lingers, simply because of their class-related poverty. In my view, as laudable as the goal of raising funds for victim's services is, a reasonable person in this situation can only conclude that the law has an unfair and discriminatory effect on characteristically poor, mentally disabled offenders.

[30] Before explaining, in full, the reasoning that has led me to the decisions I have just summarized, I will review the relevant legislation and describe its enforcement mechanisms.

II. The Victim Surcharge

[31] I agree with Justice Lacelle in R. v. Larocque, supra, that victim surcharges are fines, and constitute "punishment" according to law. I offered extensive reasons for this conclusion in R. v. Michael, 2014 ONCJ 360, after applying the relevant legal tests for identifying punishment.

[32] The victim surcharge is imposed by section 737 of the Criminal Code, the "Fines and Forfeiture" section of the Criminal Code. Subsection 737(1) provides that offenders sentenced for an offence, including through an absolute or conditional discharge, "shall pay a victim surcharge, in addition to any other punishment imposed on the offender." As the name implies, section 737 creates a surcharge punishment.

[33] Subsection 737(2) of the Criminal Code sets out the minimum tariff for this surcharge punishment, $100 per summary conviction count or $200 per indictable count, unless the offender is sentenced by way of a fine, in which case the victim surcharge levy is 30% of the amount of the fine. Subsection 737(7) requires that money collected by victim surcharge is to be applied to provide assistance to victims of offences. Evidence filed before me shows that the funds that are collected are applied to a range of impressive and worthwhile services.

[34] Until October 24, 2013, courts had the discretion under subsection 737(5) to waive the victim surcharge where its imposition would cause undue hardship. Effective October 24, 2013 that section was repealed, making the victim surcharge universal, applicable in all cases, without exception. The materials filed before me confirm the Crown's position that this was done because of the Government's position that the judicial discretion to waive the victim surcharge based on "undue hardship" was being abused, resulting in the surcharge being imposed only exceptionally.

[35] In all cases, then, the court is required by subsection 737(8) to notify the offender of the surcharge and the payment arrangements, as is the case with a fine. In most cases, unless the offender applies for and is granted an extension of time to pay, under section 737(4), the surcharge must be paid within the period designated by the Lieutenant Governor in council in the province. In Ontario the period set by the Lieutenant Governor under Order in Council 2173/99 is 30 days for surcharges on summary conviction offences, and 60 days for surcharges on indictable offences. If a person is sentenced by way of fine, the trial judge can, of their own motion, determine the time that the offender requires to pay the combined fine/surcharge penalty.

[36] In order to assist in the collection of the victim surcharge, subsection 737(9) applies all of the collection methods available for fines, with the exception of lodging a victim surcharge order as a civil judgment.

[37] Specifically, if an offender has failed to pay the victim surcharge without reasonable excuse, the offender can be committed into custody to receive the incarceration penalties specified in subsection 734.8. Those who can demonstrate that they are unable to pay cannot be incarcerated for non-payment, however: R. v. Wu 2003 SCC 73. They are "nevertheless subject to available collection methods short of jail": R. v. Wu, supra at para 50.

[38] One of those collection methods is provided for in section 734.5, which authorizes provincial and federal government agencies to refuse to issue or renew any licence, permit or other instrument. This includes driver's licences, and is broad enough to, and may include, game licences, trade licences, or even building permits.

[39] In Ontario, pursuant to a Service Agreement between the Management Board Secretariat Collection Management Unit and the Ministry of the Attorney General of February 1, 2001, any outstanding victim surcharge debts are to be assigned to the Collection Management Unit for referral to private collection services. Those private collection efforts can include phone-calls, letters, and threats of enforcement. Since victim surcharges cannot be lodged as civil judgments it would seem that garnishment from wages, or the filing of executions against properties would not be available.

[40] In British Columbia the Province's Revenue Service is responsible for collection, and registers the victim surcharge debt with the Canada Revenue Agency, which causes it to be paid out of any tax refund owed to the offender. This includes GST rebates issued by the Federal Government to those with minimal income: R. v. Barinecutt 2015 BCPC 189. I received no evidence on whether similar measures are taken in Ontario.

[41] Other methods of enforcement have also been created to provoke payment of fines, including the victim surcharge. Whether an individual is able to pay or not, and regardless of the hardship that payment might entail, an outstanding victim surcharge prevents the offender from applying for a record suspension under the Criminal Records Act, R.S.C. 1985, c.C-47, the old "pardon."

[42] In her able submissions, Ms. Tansey for the Crown urged that in evaluating the impact of the victim surcharge on Ms. Madeley I should not consider the enforcement consequences I have identified, since these are provided for in other legal provisions apart from section 737. Ms. Tansey challenged Ms. Madeley, for example, that if she is disquieted about her disqualification for a licence, or for a sentence suspension while the victim surcharge remains unpaid, she should attack the statutory provisions that create these enforcement consequences.

[43] I cannot agree. These and the other consequences I have mentioned are state-based, collaborative enforcement mechanisms that impose adverse consequences for the specific purpose of encouraging payment of fines, including victim surcharges. They are part of the overall adverse consequences the victim surcharge gives rise to.

[44] Indeed, it is worth pointing out that the restraint on incarcerating offenders for non-payment of the victim surcharge arises from the construction of a section 734.7(1)(b)(ii) of the Criminal Code, a different provision from section 737. Yet the Crown submitted that this provision has to be considered in evaluating the impact of the victim surcharge on the poor. This was an appropriate submission, and so too are the arguments made by Ms. Madeley. To try to cabin section 737 in isolation when evaluating the adverse consequences the victim surcharge has would not only permit form to triumph over substance; it would undermine the integrity of the mandated constitutional inquiries that I am to consider, into the effects the impugned law has.

[45] With that background laid out, I will explain the reasoning that led to the conclusions I have arrived at. It is convenient to begin with Ms. Madeley's section 15 challenge.

III. Section 15: The Equality Rights Complaint

a. The purpose and test

[46] Section 15(1) of the Charter guarantees that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.

[47] Speaking generally, the function of the equality provision is to redress conduct by the state that has the purpose or effect of discriminating against groups that have been historically disadvantaged as the result of prejudice or stereotyping: R. v. Nguyen et al. 2015 ONCA 278. "[S]tated another way, the goal [of section 15] is to ensure that 'a law … should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another'": Symes v Canada, [1993] 4 S.C.R. 695 at para 113.

[48] Since section 15 is intended to address disadvantage, it can be used to challenge laws that are passed for discriminatory purposes, as well as laws that are passed for laudable purposes that have a discriminatory effect: Quebec (Attorney General) v. A. 2013 SCC 5, [2013] S.C.J. No. 5, paras 196-198. Ms. Madeley does not contend that section 737 violates section 15 because it was passed with the intent of discriminating against persons with "mental disabilities." Her claim is that section 737 has a disproportionately negative impact on persons with "mental disabilities."

[49] The legal test used to determine "whether the challenged law violate[s] the norm of substantive equality in section 15(1) of the Charter" has evolved over time: Withler v. Canada (Attorney General) 2011 SCC 12 at para 2. Currently a two-stage test, initially described in R. v. Kapp 2008 SCC 41, and affirmed in Withler, supra at para 30, is employed for section 15 complaints. The evolution of the test is discussed, at length, in Quebec (Attorney General) v. A. 2013 SCC 5. Even in Quebec, supra, lingering disagreement is expressed as to the precise meaning of the test. All of these authorities agree, however, that a prima facie section 15 complaint is to be approached by posing two questions.

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[50] The first stage in the inquiry, "Does the law create a distinction based on enumerated or analogous grounds," ensures that "the courts address only those distinctions that were intended to be prohibited by the Charter": Withler, supra at para. 33.

[51] The second stage, "Does the distinction create a disadvantage by perpetuating prejudice or stereotyping," is intended to identify the discriminatory impact that section 15 means to address: Withler, supra at para. 34.

[52] Section 15 claims are different in nature from most other Charter violations, not only in their obvious complexity. They are, in essence, group claims. While it is necessary for the claimant to show that they have membership within the identified group, as the section 15 test illustrates the analysis focuses ultimately upon the impact of the law on the group to which the complainant belongs. In other words, the complainant can call into aid the way in which the law impacts on members of the group generally, rather than solely on her specifically.

[53] I propose to resolve the prima face equality claim before me by asking these questions, in turn, dealing with doctrinal controversies as I proceed.

b. Stage 1 of the test – Distinction on an Enumerated or Analogous Ground

[54] To satisfy stage 1 of the test:

"[T]he claimant must establish that he or she has been denied a benefit that others are granted or carries a burden that others do not by reason of a personal characteristic that falls within the enumerated or analogous grounds of s.15(1)"

[55] In effect, stage 1 of the test has two analytical components - identifying the distinction in issue, and determining whether that distinction is based on an enumerated or analogous ground: Quebec, supra at para 348. Given the issues raised in this case, I find it useful to approach these two components in reverse order.

[56] First, I will determine whether the personal characteristics relied upon qualify as an enumerated or analogous group within the meaning of section 15. In resolving this question I will determine whether Ms. Madeley is a member of the enumerated or analogous group she claims, for if she is not, she lacks standing to advance this Charter complaint.

[57] Second, I will determine whether the victim surcharge creates an adverse distinction based upon the personal characteristics of membership in the enumerated or analogous class being claimed. In R. v. B.(T.M.) [2013] O.J. No. 3413 (Ont. Sup. Ct. J.), at para 43, Justice Code insisted that the distinction must be a "meaningfully different effect" to qualify. Although this qualitative component is not generally articulated in the test, it must be true that a claim cannot be properly based on a minimal or meaningless distinction. At the same time, to meet the section 15 stage 1 test, it is not necessary for the denial of a benefit or the burden to be crushing, oppressive, or even grossly disproportionate.

i. Is the claim based on an Enumerated or Analogous Class?

1. The Class Invoked

[58] Counsel for Ms. Madeley contends that the relevant personal characteristic for the purpose of the analysis is that Ms. Madeley is "an offender with a disability as defined by the Ontario Disability Support Act." The Crown is correct in stating that "ODSP offenders" is not an enumerated or analogous class. Protected classes under section 15 are not created by statutory eligibility requirements. They are recognized, instead, based on personal characteristics linked to historical disadvantage. I have no basis for concluding that persons receiving "ODSP" are, by virtue of that specific class membership, historically disadvantaged as the result of prejudice or stereotyping.

[59] On its face, this may appear to dispose of the section 15 Charter claim because I am to rule on the Charter application before me. To summarily dismiss this application on that basis, however, would be churlish. In spite of how counsel articulated the relevant class, it is evident both from the written application and oral submissions received that Ms. Madeley's complaint is that she suffers from a mental disability, and that the victim surcharge levy is more burdensome and discriminatory for her because of her mental disabilities. In other words, her claim is based on "mental disability," a specifically enumerated class that unlike other enumerated classes includes personal circumstances that "may be, but [are] not necessarily immutable": Granovsky v. Canada (Minister of Employment and Immigration) 2000 SCC 28, [2000] S.C.J. No. 29 at para 28.

[60] The Crown disagrees with this characterization. It contends that even if Ms. Madeley is "mentally disabled," a claim that is not conceded, Ms. Madeley's complaint is, in substance, about the impact of the victim surcharge on the poor, and "[i]t is well established that income level is not a personal characteristic": Guillemette v Canada, [1997] T.C.J. No. 589 at para 21 (Tax Court of Canada); Re Affordable Energy Coalition 2009 NSCA 17; R. v. Banks (2007), 2007 ONCA 19, 216 C.C.C. (3d) 19 (Ont. C.A.)

[61] It is true that "poor people" are not an enumerated or analogous class. This is because "the term [poor people] signifies an amorphous group" of persons whose poverty can arise in numerous ways and for various reasons: R. v. Banks, supra at para 104. Had Ms. Madeley said "I am bringing my claim on behalf of poor people," the Crown argument would prevail. But that is not what she is doing. As indicated, she is bringing this claim on behalf of mentally disabled persons, on the footing that poverty is a class characteristic that results in discriminatory effects against disabled persons if the victim surcharge is applied indiscriminately. In substance, then, the Crown's challenge to the integrity of the class is based on the theory that if the essence of a complaint made by a member of an enumerated group relates to the poverty or the income level of members of the group, it is not a tenable section 15 Charter claim.

[62] In spite of the able argument presented, this cannot be right. It would mean that gender-based equality claims grounded in the feminization of poverty, or equal pay for work of equal value complaints, could not be advanced under section 15 because they are, in substance, complaints about income level. Yet in Quebec, supra the majority of the Supreme Court of Canada found a prima facie section 15 breach based on the differential treatment of economic remedies on relationship break-up between married and non-married partners, and in Newfoundland (Treasury Board) v. N.A.P.E. 2004 SCC 66, [2004] 3 S.C.R. 381 the Supreme Court of Canada agreed with the courts below that legislation abolishing equal pay protection violated section 15 of the Charter. In both cases the legislation was saved only under section 1.

[63] The decision in Canada v. Symes, [1993] 4 S.C.R. 695, is also inconsistent with the Crown's position. In that case the sex-based equality complaint did not fail because, in substance, it was a mercenary claim related to after-tax income levels. The Court agreed that it was dealing with a sex-based section 15 Charter claim, but it refused that claim only because there was insufficient evidence of a discriminatory effect.

[64] Having said this, it is true that most poverty related claims do not have merit. This is not because reliance on poverty within an enumerated or analogous group destroys the integrity of a class claim. Poverty related section 15 claims tend to lack merit because the legislation that affects poor people disproportionately is not discriminatory in the sense intended by section 15, for the reasons I explain below. Suffice it to say for now that, even though it may be more difficult for a poor person to pay public flat fees such as bridge tolls, or hydro charges, requiring them to do so does not create prejudice or feed a stereotype, or exacerbate disadvantage.

[65] The Crown also urged in the alternative that a poverty-related claim cannot shelter under the class of mentally disabled persons, because not all mentally disabled persons are poor and therefore prone to the "unequal" consequences complained of. This, too, is misconceived. A section 15 complaint is not defeated simply because not all persons within the group would suffer an adverse consequence: Quebec, supra, at paras. 354-356. Sue Rodriguez did not lose her section 15 complaint because not all physically disabled people are unable to commit unassisted suicide: Rodriquez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. She lost it because the inequality she experienced was justified under section 1. And in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1247 Chief Justice Dickson did not accept the submission that was made that discrimination based on pregnancy is not discrimination based on sex because not all women are pregnant. As long as the triggering condition is an historical disadvantage that is characteristic of members of the enumerated or analogous category, it need not be a universal condition.

[66] A section 15 claim that is linked to poverty may well flounder, then, because of a finding that poverty is not an historical disadvantage within the enumerated or analogous class, or because the law does not discriminate against that class, but a claim will not fail simply because it involves a complaint that is intimately related to poverty within a group.

[67] The claim before me therefore alleges discrimination against an enumerated class - the mentally disabled - and can proceed to the next stage of analysis, provided Ms. Madeley is a member of that class.

2. Ms. Madeley's Membership in the Class

[68] Charter authority offers no fixed definition of "mental disability" to assist me in testing Ms. Madeley's standing. This is by design. As Justice Sopinka noted in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para 69, disability "means vastly different things depending upon the individual and the context." In Granovksy v. Canada (Minister of Employment and Immigration) 2000 SCC 28, [2000] S.C.J. No. 29 at para 29, Justice Binnie therefore commented:

"The concept of disability must … accommodate a multiplicity of impairments, both physical and mental, overlaid with a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called 'disabled' individual may not be impaired or limited in any way at all."

[69] When Justice Binnie made this comment, he did so influenced by the World Health Organization's approach to "disability." That approach is captured in "Disabilities," World Health Organization: available at http://www.who.int/topics/disabilities/en/:

"'Disabilities' is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure: an activity limitation is a difficulty encountered by an individual in executing a task or action: while a participation restriction is a problem experienced by an individual involved in life situations. Thus, disability is a complex phenomenon, reflecting an interaction between features of a person's body and features of the society in which he or she lives.

[70] As a result, Justice Binnie explained that a proper analysis of "disability" cases requires attention to three separate components, (1) the physical or mental impairment, (2) the "functional limitations" ("real or perceived," attached to the physical or mental impairment, and (3) the "socially constructed handicap," being the wrongly attributed, exaggerated, or unjustified consequences that may be applied to whatever limitation exists: Granovsky, supra at paras 34-37. It follows that the conception of "mental disability" that is used to identify standing to bring a section 15 claim and in evaluating the integrity of a "mental disability" claim must accommodate these concepts. Since a "socially constructed handicap" is not a necessary component of a disability claim, a proper conception of a physical or mental disability must at least accommodate the first two components, namely, a physical or mental impairment producing real or perceived functional limitations.

[71] I could rest content with this, but out of an abundance of caution I will use more conventional construction techniques to offer a more precise working definition to be used in evaluating whether Ms. Madeley has brought a proper "mental disability" claim. This more conventional approach to construction involves giving the term its natural meaning, read in context, in light of the purpose of the provision.

[72] Beginning with the ordinary meaning of the term, "disability" usually means "a handicap," or "a lack of some asset, quality or attribute that prevents someone from doing something": Canadian Oxford Dictionary (2nd ed), (Don Mills Ontario: Oxford University Press, 2004) Having said that, and consistent with what Justice Binnie said in Granovksy, supra, a "disability" does not require a complete lack of ability. The term "disabled" refers to persons "having reduced physical or mental abilities".

[73] The term "disability" is frequently found in legislation. In Battlefords and District Co-Operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, for example, the Supreme Court of Canada dealt with the term, "disability," in the Saskatchewan Human Rights Code, S.S. 1979 c.S-24.1. As the ordinary meaning of the term would suggest, the definition referenced "retardation," "impairment," "dysfunction" "disorder."

[74] This is also the sense in which the term "disability" is used in the Ontario Disability Support Act, section 4(1), which describes a circumstance in which "the direct and cumulative effect [of the relevant condition] on the person's ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living."

[75] The term "mental disability" requires, of course, that the disability being claimed must arise from a person's mental functioning. While there can be controversy about the ultimate reach of the concept of a mental disability, it is obvious that it embraces at least "mental disorders" that impair proper functioning. The term "mental disorder" is used in both the Saskatchewan Human Rights Code, referred to above, and in the Ontario Human Rights Code to capture mental disabilities.

[76] Together, the natural meaning of the term "mental disability" would therefore embrace persons who suffer from a mental disorder that has the effect of materially impeding their proper functioning, including their ability to function in the community.

[77] A purposive interpretation of the term, "mental disability," also supports the cautious, non-exhaustive meaning that I have just offered. In Eaton, supra at para 66, Justice Sopinka spoke of section 15's role in, "ameliorating the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons." And in R. v. Swain, [1991] 1 S.C.R. 933 Chief Justice Lamer spoke of the mentally ill in the context of section 15 of the Charter, noting that the provision addresses the damaging stigma of mental illness, which includes the prolonged systematic isolation and segregation of the mentally ill from mainstream society, "devalued, ridiculed and excluded from participation in ordinary social and political processes."

[78] Even a conservative application of the ordinary interpretive principles would therefore define the term, "mental disability," as including persons who suffer from a mental disorder that has the effect of materially impeding their proper functioning, including their ability to function in the community.

[79] So, does Ms. Madeley suffer from a mental disorder that has the effect of materially impeding her proper functioning, including her ability to function in the community? Mr. Phillips argues that Ms. Madeley must have a "mental disability" because she receives "ODSP," which is paid only to those who are disabled. I cannot act on this submission. In law, Ms. Madeley's receipt of ODSP, at best, represents a hearsay opinion held by someone who has not testified before me that she is disabled. I must therefore look at other available evidence.

[80] I will begin with evidence of her mental disorder. Ms. Madeley testified that she suffers from severe anxiety, depression, and post-traumatic stress disorder from the many years she has spent on the streets. She testified that she has recently been diagnosed with bipolar disorder. She has been prescribed and takes Seroquel and Celexa for these conditions. The Crown did not challenge this evidence during cross-examination. Indeed, presentence report documentation from as long ago as 2004, secured by the Crown, verifies that Ms. Madeley had once been taken to a hospital under the Mental Health Act for suicidal ideation, and that she suffers from ADHD, and was recommended by the probation officer to consult a family doctor for issues of depression. She has also had a Canadian Mental Health Association worker for some time.

[81] The evidence before me also shows that Ms. Madeley struggles to participate effectively in society. She has lived long periods of her life on the streets, and has not had legitimate employment for many years. She has lost two children to child welfare agencies, and is a chronic recidivist. She has had only sporadic success with her rehabilitative efforts. Indeed, she was unable to organize herself adequately to complete a full presentence report in preparation of her sentencing before me, and the Probation and Parole Services Report of June 23, 2015 confirms that she has struggled to "get her act together."

[82] The Crown nonetheless challenged the claim that Ms. Madeley is disabled by urging that she is capable of working either now, or will be in the near future. Reliance was placed upon Ms. Madeley's testimony that she has worked in the past, is planning on taking a stabilization program offered by the Canadian Mental Health Association to learn life skills, and is hopeful that she will be able to find work. In my view, Ms. Madeley's condition cannot be measured either by her distant past, or by her current hopes. I am satisfied on the evidence before me, to the constitutional standard that applies – the balance of probabilities - that she is incapable of maintaining gainful employment and will remain dependent on social assistance in the foreseeable future.

[83] The Crown also challenged the correlation between Ms. Madeley's mental disorder and any disability she might have. Ms. Tansey contended that, on the evidence, Ms. Madeley's inability to participate in society may be related to her criminal record which Ms. Madelely herself focused on as her employment obstacle, or on Ms. Madeley's drug addiction, instead of any mental illness she may have.

[84] To be sure, it would have been prudent for Ms. Madeley's counsel to have provided medical evidence verifying the relationship between Ms. Madeley's mental illnesses and the challenges she has had in coping. Without attempting to resolve the "chicken and egg" relationship between Ms. Madeley's addictions and criminal record, and her mental illness, however, the fact that other pressures may also impede her proper functioning does not negate a "mental disability" finding. There is no question that if her mental health woes have not caused her to become an addicted criminal, her mental health has played a material role.

[85] This is not a matter of conjecture but of history. As described, mental health services have played a large role in assisting Ms. Madeley to try to cope in society. Her probation officer, responsible for her rehabilitation, suggested that she receive help with her depression, she is provided with CMHA assistance in the community, and as the Crown pointed out in argument, Ms. Madeley's rehabilitation aspirations rest with a mental health stabilization program offered by the CMHA.

[86] Given this and the conditions she describes, I am satisfied on the balance of probabilities that Ms. Madeley's mental illness contributes materially to her disability. She therefore has a mental disability within the meaning of section 15, and the standing to bring this challenge.

ii. Does section 737 create a Meaningful Distinction based on Mental Disability?

[87] Does the victim surcharge, then, create a meaningful distinction, either in purpose or substance, based on mental disability?

[88] Traditionally, in order to demonstrate an adverse distinction the Charter claimant would have to properly identify a "comparator group," and show that the claimant group is being treated differently, and in a less favourable way, than that comparator group. Indeed, in Granovksy, supra at para 45 Justice Binnie described the identification of the comparator group as "crucial" to a claim of unequal treatment.

[89] In Withler v Canada (A.G.), supra, however, the Court made clear that even though an inquiry about "distinctions" is inherently comparative in nature, the identification of specific comparator groups is not a necessary component of a section 15 claim. As Justice Lebel explained in Quebec, supra at para 167, while "it may be helpful at the stage of determining whether a distinction exists to compare the group of which the claimant is a member to other groups…a formalistic or artificial approach" should not be taken.

[90] In Withler, supra, at para 40, the Chief Justice and Justice Abella explained for a unanimous Supreme Court of Canada that the Court had moved away from a mandatory and focused use of "comparator groups" because insisting on the identification of comparator groups was distracting courts from the real issue of interest – "the elimination from the law of measures that impose or perpetuate substantive inequality."

[91] Specifically, the Court catalogued a list of concerns with the use of "mirror comparator groups," including that the exercise of identifying a specific comparator group is too imprecise and inherently controversial to be allowed to determine the outcome of a Charter claim (at para 42-54, 56). Moreover, such comparisons can emphasize formal rather than the substantive differences that section 15 addresses (at para 57), and focusing on a particular group may fail to account for "interwoven grounds of discrimination" (at para 58). Ultimately as Justice Lebel makes clear in Quebec, supra, at 167-169 in his historical excursion through the section 15 jurisprudence, the loosening of the comparator group inquiry was brought about so that the "discrimination" inquiry at the second stage of the analysis would become the focus in a section 15 challenge.

[92] The "adverse distinction" inquiry, therefore, is not about whether the enumerated or analogous group is being treated more poorly than some other specific category of persons. Nor is it about discrimination. As indicated, its function is simply to ensure that "the courts address only those distinctions that were intended to be prohibited by the Charter": Withler, supra at para. 33. At stage 1 what is required where the impugned "law purports to treat everyone the same" is for the applicant to show that the law "has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds": Withler, supra at para 64. As the Withler Court explained, this kind of distinction can be demonstrated by showing historical or sociological disadvantage, and by focusing on the effect of the law, and the situation of the claimant group.

[93] For the reasons provided, when the Withler Court commented that the search for an adverse distinction includes looking at the "effect of the law," it was not inviting, at this stage, a search for discrimination. Instead, it was calling for an inquiry into the existence of adverse effects from the impugned law that are related to historical or sociological disadvantage. In effect, Stage 1 is a hurdle that must be crossed to get to the essence of a section 15 claim, which is the Stage 2 discrimination inquiry.

[94] For this reason, I cannot find guidance in the holding in R. v. Larocque, supra, at para 25, that the victim surcharge does not have an adverse effect on the mentally disabled. This holding was based on the failure by Mr. Larocque to show that the surcharge aggravated or perpetuated disadvantage. With respect, whether a law aggravates or perpetuates disadvantage is about discrimination, rather than the existence of a material adverse effect: see Withler, supra at paras 34-39. Indeed, the Stage 2 discrimination inquiry asks expressly, "Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?" The issue of whether the victim surcharge has an adverse effect on the mentally disabled therefore should have been resolved without consideration of aggravated or perpetuated disadvantage.

[95] I must therefore determine without the benefit of a guiding decision whether the victim surcharge "has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds." More precisely, I have to resolve whether the victim surcharge has a disproportionately negative effect on Ms. Madeley and other mentally disabled persons, because of factors relating to their mental disability.

[96] Ms. Madeley did not provide statistical or expert evidence confirming the impact of the mandatory imposition of the victim surcharge on the mentally disabled. The "distinction-based" proposition being offered, however, is straightforward. It is that poverty is an historical or sociological disadvantage that makes it more difficult for many members of the group to pay the victim surcharge and avoid its enforcement strategies, the way that others who are not similarly situated can generally do.

[97] It is not difficult for Ms. Madeley to verify the first part of that claim, that poverty is an historical or sociological disadvantage for mentally disabled persons. The fact that the government of Ontario has established the Ontario Disability Support Program to provide public funds specifically and exclusively to poor disabled persons to assist in sustaining them is proof enough that this is so.

[98] Even leaving this aside, the relationship between mental disability and poverty is notorious and indisputable, entirely fit for judicial notice. So, too, is the proposition that poverty is characteristically more common within the class of mentally disabled persons, than it is in the general population of potential offenders.

[99] In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para 56 the Supreme Court of Canada provided a detailed rendition of the comparative poverty of disabled individuals, relative to others:

"It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to serious stereotyping and relegated to institutions. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the 'equal concern, respect and consideration' that s.15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity, charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms. One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed." (emphasis added)

[100] It is instructive that in identifying the historical and social disadvantages of the disabled, including the mentally disabled, the Court in Eldridge was not troubled by the fact that not all disabled persons are poor. The prevalence of the experience of poverty was sufficient for it to be characteristic within the class of the disabled persons, even though there are no doubt many disabled individuals who have avoided this outcome.

[101] It is also instructive that the Supreme Court of Canada did not shy away from recognizing poverty to be group characteristic, even though there are others who are not mentally disabled but who are poor. I point this out in response to the submission by the Crown that there cannot be a poverty-based distinction between those who are mentally disabled and others, if others are similarly affected by poverty. This is not correct. The law has never insisted that a section 15 claim is defeated if there are members outside of the class who are also affected adversely by the law in the same way the enumerated or analogous group is disadvantaged by it. This is because the purpose of section 15 is not to ameliorate disadvantages that are experienced only by the enumerated group in question. Its goal is to ensure that a law will not be disproportionately burdensome for members of the enumerated or analogous class because of irrelevant personal differences that are characteristic of that class: Symes, supra at para 113.

[102] In Symes, supra, for example, the Court did not dismiss the Charter claim on the simple basis that even if women disproportionately bear child-care costs, so too do some men. The Court considered the claim on its merits, rejecting it only because the claimant could not show that child-care costs are actually paid disproportionately by women. Similarly, in Eldridge, supra, the Court was not concerned that deaf persons are not alone in having difficulty securing medical services because of communication problems. The section 15 claim, based on the failure to provide sign language interpreters, succeeded even though those who do not speak a national language are apt to have similar problems. And in Inglis v British Columbia (Minister of Public Safety) [2013] B.C.J. No. 2708 (B.C.S.C.) the cancellation of the mother-baby program had a distinct impact on aboriginal women because of the disproportionate number of aboriginal inmates. It did not matter that not all women affected were aboriginal. Ultimately, the fact that persons outside a group may also be experiencing the same disadvantage does not destroy a section 15 claim.

[103] For the reasons expressed I have no doubt that poverty is sufficiently more common within the class of mentally disabled persons than it is in the general population to constitute a historical or social disadvantage of disability. The pay-dirt question in this Stage 1 inquiry, then, is whether, because of this class characteristic, the victim surcharge imposes a material disadvantage on the mentally disabled.

[104] As indicated, Ms. Madeley seeks to support this contention by pointing not only to the financial impact that the victim surcharge can have on poor, mentally disabled persons such as herself, but also because of the enforcement consequences that the victim surcharge carries with it when payment is delayed or not made because of a lack of funds.

[105] As is evident in the comments I have made and the legal tests I have cited, since Ms. Madeley's section15 Charter complaint is a group claim, it would not be appropriate for me to focus solely on her personal situation. I am required to consider, as well, the impact of the law on mentally disabled persons generally. This was true even in the "comparator group" era, where the heart of the inquiry was about group impact, and it remains true now. As the Withler majority expressed it, I am to ask whether the impugned law "has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds" (emphasis added).

[106] As I cautioned in R. v. Michael, supra, in considering the impact the victim surcharge has it would be misleading to think only of the tariff for a single offence, namely, $100 for a summary conviction crime and $200 for an indictable offence, or a 30% surcharge on a sentence imposed by way of fine. This is because anyone familiar with the business of the provincial courts is aware that it is common for offenders, including mentally disabled offenders, to be bound at the time of their offences by court orders relating to their behaviour. As is the case with Ms. Madeley for the charges I am now considering, individuals are frequently, if not typically, prosecuted and convicted not only of the substantive offence they commit, but also of one or more breach charges.

[107] Moreover, it is common for offenders, particularly homeless offenders, many of whom are mentally disabled, to accumulate a series of charges on different occasions. This is also true in the case of Ms. Madeley. Subsequent to her plea before me on these charges, Ms. Madeley was rearrested on other offences.

[108] The point is that it is not atypical for offenders, including mentally disabled offenders such as Ms. Madeley, to accumulate victim surcharge obligations in the many hundreds, even thousands of dollars. The cost imposed by the victim surcharge on offenders cannot therefore be disregarded as de minimis or immaterial. The levies are often significant, and are invariably harsher for those who are poor, and who have less ability to pay.

[109] Ms. Madeley's particular example is illustrative. As indicated, she depends on public assistance. On the evidence before me she receives accommodation and disability benefits in the range of $600 monthly, minus the cost of her bus pass, leaving her approximately $100 a week to live on. She testified that in light of her limited means the $200 she faces in victim surcharges for the offences I have found her guilty of would impose a significant burden on her. While being granted an extended time to pay would ease things, she testified that the money still comes out of the modest amount she has to maintain herself. Proportionately, even the $200 that section 737 levies for the offences now before me is an imposing sum. For her, $200 is the entire amount available for her living expenses for half a month.

[110] Without deciding whether its impact is discriminatory, given the disproportionate prevalence of poverty among mentally disabled offenders and the significance of the levy, in my view, the victim surcharge scheme clearly creates an adverse distinction on its class members relative to offenders generally.

[111] I also agree with Ms. Madeley that the adverse impact the victim surcharge has on mentally ill offenders is not confined to the weight of the direct financial cost I have just described. Offenders who cannot pay promptly, or at all, because of their poverty are subjected to significant, ongoing enforcement implications I describe above, that can easily be avoided by those who are not poor.

[112] First, offenders who are not completely unable to pay can be incarcerated for not paying the victim surcharge, regardless of the level of hardship that payment entails. Naturally, the law cannot provide clear lines about how poor is too poor to pay. As I noted in R. v. Michael, supra, at para 74, "Anyone on the margin who owes outstanding criminal levies and who attends to their obligations will be left to wonder whenever spending 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."

[113] Second, whether individuals can pay or not, they are subject to ongoing collection efforts, unless they have the administrative wherewithal and organizational ability to apply for discretionary extensions of time to pay. Certainly, in British Columbia, where such extensions have not been extended, even individuals who are completely incapable of paying can have money deducted from the GST rebates they might otherwise receive, and in Ontario they can be subjected to collection efforts, including demand letters and referral of their debt to collection agencies.

[114] Third, as described above, so long as victim surcharges are outstanding, individuals are ineligible for driver's licences or other licences or permits, whether they have sought and received extensions to pay or not. They are also ineligible to apply for record suspensions, the current conception of a "pardon."

[115] Fourth is the point that I made in R. v. Michael, supra, at para 75:

"Exposing those who are poor … 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…. 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 … 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 [the offender] fails to pay the victim surcharge he remains indebted and criminalised. 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."

[116] Simply put, even if a poor offender is given time to pay, and can ultimately scrabble together enough to discharge their obligation after receiving extension, or extension upon extension, it remains true that because they are poor, the entire time they are endeavouring to pay the victim surcharge they remain "accountable," unable to discharge their debt to society, making reconciliation impossible.

[117] In my view, even leaving aside the disproportionate economic impact I describe above, all of these things confirm the adverse distinction that the victim surcharge regime has upon characteristically poor, mentally disordered offenders, relative to most other offenders.

[118] I make this finding notwithstanding the arguments that the Crown advanced in an effort to pare down the list of things I should consider. I have already recounted the Crown submission that I should focus solely on section 737, while disregarding these enforcement mechanisms. In addition, the Crown urged that I should not be prognosticating about future inability to pay based on the current financial situation of individuals, in light of the decision in R. v. Wu 2003 SCC 73. The Crown also argued that many of the concerns I have just recounted are speculative, there being no evidence that Ms. Madeley, or any other disabled person, has experienced the stress of an unpaid victim surcharge.

[119] With respect to the decision in R. v. Wu, supra, however, I remain of the view that it is irrelevant. R. v. Wu, supra, like the decision in R. v. Lavigne 2007 SCC 10 where similar dictum can be found, involved attempts by trial judges to apply statutorily inappropriate strategies to avoid imposing fixed fines. In effect, given the statutory provisions that governed, the inability of an offender to pay in the foreseeable future was legally immaterial to the sentence the judges were required to impose.

[120] In the case of a Charter challenge like the one before me that is based on the implications that a fine provision has, it is simply not possible to answer the constitutional question without evaluating the long-term implications that the provision has for the Charter claimant. The judge seized of the issue is required to examine whether the claimant has proved a Charter violation on the balance of probabilities, and cannot, in my view, refuse to consider the implications of a perpetual or protracted inability to pay that is more probably than not going to arise, given the personal circumstances of the offender. Indeed, in New Brunswick (Minister of Health & Community Services) v G.(J.), (1999), 26 C.R. (5th) 203 at para 51 (S.C.C.), the Court confirmed that "remedies can be ordered in the anticipation of future Charter violations, where there is proof of "probable future harm."

[121] This is particularly true where a group claim, such as the section 15 claim I am now considering, is being brought. Given that I am to consider the impact of the victim surcharge on the group of mentally disabled persons, it approaches the farthest reaches of artifice to proceed on the basis that the group as a whole may well come into sufficient employment or money to be able to discharge their debt without delay.

[122] I am of the same view about the contention that the stress and sense of exclusion I have identified are merely speculative. It is true that there is no evidence before me of anyone, including Ms. Madeley, claiming to have such experiences, but no evidence is needed.

[123] Dealing first with Ms. Madeley, to have me wait until she has experienced the stress and displacement that non-payment brings would undermine the utility in even bringing a challenge. The purpose of the Charter is to prevent unconstitutional mischief before it arises, not to wait for it to have already occurred before responding.

[124] In my view, the argument that it is speculative and unrealistic to believe that offenders will experience the pressure of non-payment is also misconceived. The whole point of the enforcement mechanisms is to make non-payment unpleasant enough to inspire payment. Eliciting the assistance of collection agencies, withholding licences or permits, and postponing eligibility for record suspensions are meant to apply pressure. So, too, is the threat of jail for nonpayment. I cannot see how it is speculative or unrealistic to assume that these measures achieve their intended purpose.

[125] The same holds true, in my view, with the legal messaging that accompanies the non-payment of the victim surcharge that I address in the long paragraph from R. v. Michael, supra, quoted above. The impact of a lingering, unsatisfied sentence may appear to be abstract, but it is no more abstract than the concept of denunciation that forms a central principle of sentencing. As has often been said, the criminal law is a system of values. It trades on the messages it sends about moral fault, justice, and restoration. These messages matter not only to the theory of criminal law, they furnish much of the justification for punishment. Of more immediate importance, they are calculated to influence public perception about crime and criminal behaviour.

[126] Consider the concept of restoration achieved through the promotion of responsibility in offenders identified in section 718 of the Criminal Code. The concept is that by paying one's debt to society, pro-social behaviour can be promoted through restoration. The flip-side is that by not paying one's debt to society, restoration is premature.

[127] The legal messages that accompany non-payment of the victim surcharge itself are unquestionably adverse. The victim surcharge was made universal in The Increasing Offender's Accountability Act, for the expressed purpose of making victim's accountable for their crimes, by requiring them to contribute to the costs of attending to the victims of crime. The message this sends is clear. If the victim surcharge is paid, the offender has been held to account. If it is not paid they remain accountable. And those who remain accountable remain indebted to society for their offences, not yet fit for reintegration.

[128] Legally, as with all messages sent by the criminal justice system, these messages are meant to be serious and real, not speculative and trivial. Reduced to its simplest, it cannot be correct that a court, charged with identifying the adverse effects of a law, is required to ignore the very adverse exclusionary messages that the law is meant to deliver.

[129] I am therefore persuaded that Ms. Madeley, and other mentally disabled individuals, are materially adversely affected by the victim surcharge because of the poverty that is characteristic of the enumerated class of mentally disabled persons. This poverty makes it more painful for many members of the class to pay the sums that are imposed than it is for most other offenders to pay. It also makes it more difficult for the victim surcharge to be paid in a timely fashion, if at all. This poverty exposes mentally disabled persons to prolonged exposure to the adverse enforcement consequences of the victim surcharge, to the uncertainty that can accompany outstanding criminal obligations, and to the negative messaging that non-payment entails. Stage I of the section 15 test is therefore satisfied.

c. Stage 2 – Is the Victim Surcharge Discriminatory?

i. The Appropriate Legal Test

[130] The Stage 2 legal test, "Does the distinction create a disadvantage by perpetuating prejudice or stereotyping," is an inquiry into whether the adverse distinction identified at Stage 1 "has a discriminatory impact" (Withler, supra at para 34) or a "negative impact on the claimant's human dignity" (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para 41).

[131] This discrimination inquiry is concerned ultimately, with whether the impugned law violates "the norm of substantive equality": Withler, supra at para 2. In my view that norm was best expressed by Justice Lebel in Quebec, supra, at para 140, when he noted that "it is unfair to limit an individual's participation in society solely because the individual has one of [the] personal characteristics ['enumerated in s.15(1) or analogous to them']."

[132] Unfortunately, while the goal of this legal test is clear, controversy remains about precisely how this Stage 2 discrimination evaluation is to be undertaken.

[133] It is universally agreed that the "analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation," and "taking full account of the social, political, economic and historical factors concerning the group": Withler, supra at paras 37, 39.

[134] The case law also yields a number of non-exclusive, non-mandatory factors that can be consulted to guide the determination. Four of these factors, the "Law factors," were articulated in Law, supra. They include "pre-existing disadvantage," the "correspondence" between the ground on which discrimination is claimed and the actual needs, capacity or circumstances of the claimant or the affected group," whether "the impugned law has an ameliorative purpose or effect for certain members of society," and "the nature and scope of the benefit or interest the claimant feels she has been denied": Law, supra at para 88. By considering these and other relevant contextual considerations when applying the relevant legal test, and by viewing matters from "the point of view of the reasonable person, in circumstances similar to those of the claimant," discrimination can most profitably be identified: Law, supra at para 70.

[135] Beyond this, there are two areas of controversy about how discrimination is to be tested that require comment. The first relates to the role played by "prejudice" and "discrimination," and the second, to the use that is to be made of legislative purpose when identifying discrimination.

[136] To understand the first controversy about the role of "prejudice" and "stereotyping," it is necessary to appreciate that these words are legal terms of art. In Quebec (A.G.) v. A, supra, at para 326, Abella J. defined "'Prejudice" [as] the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits of individuals or the groups of which they are a member." Justice Lebel was in evident agreement, describing the prejudicial effect "of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society … based on one or more of the personal characteristics enumerated in s.15(1) or analogous to them": Quebec, supra at paras 192-193.

[137] Justice Abella described "stereotyping" as "a disadvantaging attitude, but one that attributes characteristics to members of a group regardless of their actual capacities": Quebec, supra at para 326. Justice Lebel adopted a similar definition of stereotyping that describes "inaccurate generalizations about the characteristics or attributes of members of a group that can usually be traced back to a time when social relations were based more overtly on contempt for the moral worth of the group": Quebec, supra at para 202.

[138] Prior to the decision in Quebec, supra, it seemed clear that either prejudice or stereotyping had to be found before a discrimination claim could succeed. In R. v. Withler, supra at para 54, the Court said:

"In summary, the theme underlying virtually all of the Court's s.15 decisions is that the Court in the final analysis must ask whether, having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant's situation, the impugned distinction discriminates by perpetuating the group's disadvantage by stereotyping the group."

[139] In Quebec, supra, the majority opinion on the section 15 standard, written by Justice Abella, held otherwise, that "prejudice" and "stereotyping" are relevant but not necessary conditions to a successful section 15 challenge.

[140] Justice Abella arrived at this position after expressing concern that both terms, "prejudice" and "stereotype," reflect negative "attitudes." This presents two problems. First, section 15 catches unintentional effects-based discrimination regardless of intention or attitude. That being so, "prejudice" and "stereotype" cannot be the sole bases for a section 15 violation. Second, Justice Abella expressed concern that to focus on attitudes may impose a largely unquantified burden on Charter complaints: Quebec, supra at para 328-330.

[141] For Justice Abella, proof of prejudice and stereotyping can be helpful, even determinative, but the inquiry should be a flexible and contextual one about whether the impugned law violates the norm of substantive equality. It will do so if the distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group: Quebec, supra at paras 325–327.

[142] By contrast, in Quebec, supra, at para 204, after reviewing the history of section 15 jurisprudence, Justice Lebel articulated a legal test that continued to call for proof of either prejudice or stereotyping. On the other hand, at para 180 while describing the law, Justice Lebel seemed less insistent:

"Thus, substantive equality is not denied solely because a disadvantage is imposed. Rather, it is denied by the imposition of a disadvantage that is unfair or objectionable, which is most often the case if the disadvantage perpetuates prejudice or stereotypes" (emphasis added).

[143] Since Justice Abella was speaking for the majority when rehearsing the law of section 15, and Justice Lebel is equivocal, I propose to evaluate Ms. Madeley's claim by examining both prejudice and stereotype, as well as by asking the more generic question of whether the distinction violates the norm by perpetuating arbitrary disadvantage.

[144] The second disagreement relates to the use that is to be made when identifying discrimination, of the "purpose of the scheme." Once again, the decision in Withler, supra, seemed clear that discrimination is to be evaluated by focusing "on the nature of the scheme and the appropriateness of the impugned distinction, having regard to the purpose of the scheme and the situation of the claimant," (at para 45, emphasis added). However, in Quebec, supra Justice Abella held that, "[a]ssessment of the legislative purpose is an important part of the Charter analysis, but it is conducted under s.1 once the burden has shifted to the state to justify the reasonableness of the infringement": Quebec, supra at para 323.

[145] In spite of this admonition, I do not take Justice Abella to be holding that "the purpose of the scheme" is entirely irrelevant to the substantive claim. I say this because one of the contextual factors to be considered in identifying discrimination is "'correspondence' between the ground on which discrimination is claimed and the actual needs, capacity or circumstances of the claimant or the affected group." In Withler, supra at para 51 the Chief Justice and Justice Abella clarified that this "correspondence" concept gauges "the correspondence between the purpose of the legislative scheme and the situation of the claimant group." Simply put, it is not possible to assess correspondence without assessing legislative purpose.

[146] The same holds true of another frequently consulted contextual factor, namely, whether "the impugned law has an ameliorative purpose or effect for certain members of society."

[147] Since the consideration of each of these factors requires consideration of the purpose of the legislation, I propose to consider legislative purpose when evaluating the discrimination claim, but only while considering the factors I have identified. Beyond this, purpose is a section 1 consideration, if discrimination is made out.

[148] I therefore intend to approach the "discrimination" question this way:

Having regard to relevant contextual factors, do the adverse distinctions identified at Stage 1 (namely the financial pressures imposed by the victim surcharge or protracted exposure to the other adverse consequences of the victim surcharge) disadvantage mentally disabled persons by violating the norms of equality, through the perpetuation of prejudice, stereotyping, or arbitrary disadvantage?

[149] The most appropriate place to begin answering that question, in my view, is by addressing the first of the four Law factors, since a setting of pre-existing disadvantage, when it exists, can inform decisions about relevant prejudices, stereotypes and arbitrary disadvantage. The other three Law factors assist in determining whether the impugned law discriminates by perpetuating the prejudice, stereotyping, or arbitrary disadvantage, and they will be consulted, in turn.

ii. "Pre-Existing Disadvantage"

[150] in Quebec, supra, Justice Lebel explained the importance of "pre-existing disadvantage" as a contextual factor. Quoting from Law, supra, he said at para 156, "where an individual or group might have experienced a historical disadvantage, vulnerability, stereotyping and prejudice … 'it is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization.'" Furthermore, where pre-existing disadvantage is present, differential treatment is also apt to "have a more severe impact since [members of the group] are already vulnerable".

[151] "[T]he operation of stereotypical assumptions and the impact of those assumptions on the dignity of individuals, particularly where the claimant is member of a group that could, in a general sense, be said to suffer pre-existing disadvantage," was also identified to be a key factor in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para 87.

[152] In R. v. Swain, [1991] 1 S.C.R. 933 at 85 Justice Lamer remarked that "[t]here is no question but that mentally ill in our society have suffered historical disadvantage, have been negatively stereotyped and are generally subject to social prejudice." The Court in Eldridge, supra, made the same point about the disabled, including the mentally disabled generally.

[153] I have already featured in this decision, the historical economic disadvantage that put many mentally disabled people outside the labour force, with much higher rates of employment, concentrated at the lower end of the pay scale.

[154] In addition to the economic disadvantage, the passage relied upon from Eldridge, supra at para 56, also recognized the general exclusion and marginalization of the mentally ill, including through denial of access to social interaction and advancement, and their limited entrance into the social mainstream.

[155] Finally, while the Court in Eldridge was concerned primarily with exclusion based on the perception that disability is an abnormality or flaw, the stereotypes about those mentally disabled persons who are mentally ill has another dimension. Criminal law authorities addressing historical disadvantage in this context note that mental illness is associated with stereotypes about likely involvement in crime (Swain, supra at para 39), addiction, and an assumption of dangerousness (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para 35. The mentally disabled are often excluded, therefore, not only because they are different but because their difference is sometimes equated with deviance. This perpetuates the dispossession, the homelessness, poverty and social isolation, increasing the risk of conflict: Winko, supra at para 37.

[156] The instant question, then, is whether the adverse impact of the financial pressures imposed by the victim surcharge, or the protracted exposure to the other adverse consequences of the victim surcharge, disadvantage mentally disabled persons by violating the norms of equality, through the perpetuation of prejudice, stereotyping, or arbitrary disadvantage.

iii. Is there a Discriminatory Disadvantage?

[157] Courts have appropriately been reluctant to accept claims of discrimination arising from the imposition of criminal sanctions on the basis that those sanctions affect enumerated or analogous groups with disproportionate frequency: see R. v. B.(T.M.), supra and R. v. Chambers [2014] Y.J. No 70 at para 127, (C.A.), leave to appeal to SCC refused 2014 SCCA No 534. As Justice Green observed in R. v. Johnston 2011 ONCJ 77, [2011] O.J. No. 822 where the overrepresentation of black people in prison was relied upon, "the applicant's argument, logically pursued, renders much of the criminal law – or, at a minimum, those statutory instruments bearing on penal sanctions – vulnerable to s.15 challenge on the same footing. This hardly seems tenable"

[158] I am persuaded that this reluctance is generally right, not as a simple matter of in terrorem policy, but based on the proper application of the discrimination test. This is because there is typically no "'correspondence' between the purpose of sentencing laws, and the actual needs, capacity or circumstance of the claimant group," and because the ameliorative purpose of sentencing provisions is understandable to reasonable people. Put more directly, the purpose of sentencing provisions is not to perpetuate prejudice, stereotype, or arbitrary disadvantage within a group, but rather to promote the "ameliorative purpose or effect of some members of society" by promoting justice and public protection.

[159] By focusing on "purpose" in this way I am not disregarding the fact that section 15 is meant to address not only discriminatory purposes but also discriminatory effects. The point is that a reasonable person, evaluating whether a provision promotes prejudice, stereotype, or arbitrary disadvantage, is deemed to know why the particular offender is being treated as they are. That reasonable person will know that the sentencing provision has been passed to best secure justice and public protection. When this is born in mind, it is difficult for a reasonable person to be left to believe that the sentencing provision promotes prejudice or stereotype or arbitrary disadvantage against offenders who happen to be members of an overrepresented enumerated or analogous class. That reasonable person will understand that the sentence is imposed because it is deserved.

[160] In my view, the relationship between these principles and the victim surcharge is more nuanced. This is because there is a "correspondence" between "the purposes of the law and the actual … circumstance of the claimant group," that does promote prejudice and stereotype and cause arbitrary disadvantage. This occurs because the ameliorative purpose of the victim surcharge does not remove the perception of unfair disadvantage from the mind of the reasonable person in the situation of the claimant, the way that ordinary sentencing provisions do.

[161] I will begin with the "correspondence" between "the purpose of the law and the actual … circumstances of the claimant group."

[162] In R. v. Michael, supra, at paras 89-95, I grappled with the purpose of section 737, as amended by the removal of the "undue hardship" exemption. Based on the ultimate operation of the provision, the context of its passage, and extrinsic evidence about purpose, I concluded that the penological goals of the now universal legislation consist of raising funds for crime victims, and holding all offenders "accountable" through payment for the costs of victim services.

[163] The pursuit of those purposes corresponds, in my view, to the adverse circumstances of impoverished mentally disabled persons. It does so by imposing a universal legal obligation upon all mentally disabled persons found guilty of offences to contribute to a fund for victim services, even when they cannot do so, or cannot do so without unreasonable delay. As a result, this statute contributes to the overlong, if not indefinite exposure, to the adverse consequences of non-payment.

[164] More importantly, given the prevalence of poverty among the mentally disabled, this would, in my view, cause a reasonable person in the position of the mentally disabled individual bringing the Charter claim to believe that historical disadvantage, prejudice and stereotype are being perpetuated by the victim surcharge. It does so in three ways.

[165] First, imposing the victim surcharge universally, irrespective of undue hardship related to an inability to pay, aggravates historical disadvantage by adding to the economic disadvantage of those poor, mentally disabled persons who manage to pay the surcharge, in whole or in part. Meanwhile, the collection efforts available for enforcing the victim surcharge can only add to the stress of economic disadvantage in the mind of a reasonable poor, mentally disabled person, including through the omnipresent threat of incarceration for nonpayment.

[166] Second, pending payment, impoverished mentally disabled individuals are also denied licence renewals, or from applying for record suspensions. In other words, they are denied access to privileges and opportunities available to those who can pay. While these opportunities are no doubt out of the financial reach of many mentally disabled individuals in any event, these consequences are, in my view, denials of means of social access. Once again, in the mind of a reasonable, poor, mentally disabled person, such disqualifications can only contribute to the sense of exclusion and marginalization that is widespread among the mentally disabled.

[167] Third, pending payment, mentally disordered offenders remain criminally accountable, their debt to society remaining unfulfilled. Through no fault of their own, they are denied the opportunity to move beyond their criminal past and to re-integrate fully. A reasonable person in the position of a poor, mentally disabled individual could not help, in my view, but feel that their lingering or even perpetual, unrequited accountability necessarily feeds stereotypes about mentally disordered individuals as a criminalized group.

[168] Significantly unlike the case with typical sentencing provisions, the perpetuation of this historical disadvantage and these prejudices and stereotypes cannot be removed, in the mind of a reasonable person, by the "ameliorative purpose or effect of [the victim surcharge] on some members of society," namely, crime victims who can benefit from the collection of funds for victim services. This is, in part, because the purpose of contributing a fund for victim's services, as laudable as it is, is not advanced by imposing victim surcharge obligations on those who cannot pay.

[169] Moreover, and more generally, the victim surcharge is not like other sentencing provisions, including mandatory fines that are calibrated to the crime and tailored to meet the sentencing needs where they apply. The victim surcharge is a universal levy, untethered to the seriousness of the offence, unrelated to considerations of moral fault, and unconnected to considerations of proportional response.

[170] As a result, complaints about the discriminatory impact of the victim surcharge on enumerated or analogous groups, including the mentally disabled, cannot reasonably be quelled with rejoinders about "just deserts," as can be done for other sentencing provisions, including mandatory fines.

[171] I am therefore persuaded, on the balance of probabilities that the discriminatory impact of the victim surcharge on the mentally disabled exists. I have arrived at this position after respectful consideration of the decision in R. v. Larocque, supra, which held that section 737 does not discriminate against the mentally disabled. The section 15 decision offered in that case achieves a concision that I clearly have not, but in the result, does not touch on many of the points that have impelled me to arrive at the conclusion I have. I am therefore, respectfully, not persuaded by its reasoning.

d. Conclusion on Section 15

[172] I am therefore finding that section 737 is in prima facie violation of section 15 of the Charter, the provision charged with "ameliorating the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons:" Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para 66.

IV. Is Section 7 Violated?

a. The Structure of the Challenge

[173] As indicated, Ms. Madeley contends that the victim surcharge contravenes section 7, which provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[174] To succeed in a section 7 Charter challenge, the claimant must cross two hurdles. They must establish first, that the law imperils one of the protected interests of "life, liberty and security of the person," and second, that it does so in a manner that is not accordance with the principles of fundamental justice: R. v. Rodriguez (1993), 24 C.R. (4th) 281 (S.C.C.).

[175] In this case, Ms. Madeley is obviously aware that the victim surcharge is not a life or death matter. She therefore does not raise the protected interest of the right to life. She contends instead that section 737 violates her right to "liberty" and "security of the person," without respecting the principles of fundamental justice against arbitrary or overbroad laws.

[176] The alleged "arbitrariness" rests primarily on the futility of requiring those who are too poor to pay the victim surcharge to do so, but also includes the claim that it is arbitrary to require payment of a flat fee amount for a wide range of offences, including "victimless crimes," and to use it for victims generally rather than to restore the victim of the crime at hand.

[177] The "overbreadth" claim is that the law goes farther than it should by applying to those who cannot pay, including for "victimless crimes."

[178] As can be seen, most, but not all of Ms. Madeley's claims arise from her claimed inability to pay. This complicates the section 7 analysis because it is obvious from the language of section 7 that there must be "accordance with," or a connection between the infringement of "life, liberty and security of the person," and the particular Charter complaint being made. To make the point more concretely, and in the context of this case, if section 7 imperils the "life, liberty and security of the person" only of those who can pay the victim surcharge, there will be no accordance between those interests and any arbitrariness or overbreadth claims that rest on an inability to pay.

[179] I therefore propose to address Ms. Madeley's poverty-based complaints by asking whether section 737 imperils the "life, liberty and security of the person" of those who cannot pay. When considering her more general complaints, the examination of the interests at stake need not be so limited.

[180] I will begin with her poverty-based complaints that section 737 is arbitrary and overbroad in demanding payment from persons such as her, who cannot pay because of their poverty, by asking, in turn, whether section 737 imperils either the "liberty," or "security of the person," of those who are too poor to pay the victim surcharge.

b. Is section 737 unconstitutionally arbitrary or overbroad as applied to those who cannot pay?

i. Does section 737 imperil the liberty of those who cannot pay?

[181] The authority makes clear that a provision will infringe "liberty" only where it holds out the possibility of imprisonment or other restraints on freedom of movement, or where it involves state interference with the right to make personal choices: Canada v. Carter (Attorney General) 2015 SCC 5, [2015] S.C.J. No. 5 at para 64. I am confident that section 737 has none of these consequences for persons who are too poor to pay the victim surcharge.

[182] While individuals can, in fact, be incarcerated for not paying the victim surcharge under section 734.7, and while the risk of incarceration for non-payment of a fine is a deprivation of liberty, incarceration for non-payment cannot occur legally for those who are truly unable to pay. This is because an inability to pay is a "reasonable excuse" for not paying, and where there is a reasonable excuse incarceration is not permitted: R. v. Wu, supra.

[183] Moreover, as distressing as the loss of a licence or a permit can be, interference with licenced activities does not constitute the kind of interference with freedom of movement that qualifies as a loss of liberty: R. v. Neale (1986), 1986 ABCA 169, 52 C.R. (3d) 376 at 387-88 (Alta. C.A.).

[184] Nor does section 737 interfere with the right to make personal choices, as contemplated in section 7. The fact that payment would lessen the financial ability of Ms. Madeley to do what she might want to do is not enough. In order for liberty to be engaged, the law must meaningfully interfere with highly personal choices, such as the choice to live (as in Carter, supra), or pursue medical treatment under serious circumstances (as in A.C. Manitoba (Director of Child and Family Services), 2009 SCC 30).

ii. Does section 737 imperil the "security of the person" of those who cannot pay?

[185] Whether the victim surcharge implicates "security of the person" is a much closer call. "Security of the person" "is engaged by state interference with an individual's physical or psychological integrity, including any state action that causes physical or serious psychological suffering": Carter, supra at para 64, and see R. v. Morgentaler (1988), 62 C.R. (3d) 1 at 20 (S.C.C.), per Dickson C.J.C. These effects "must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety": New Brunswick, supra

[186] Given this high standard, the case law tends to find that security of the person is imperilled where the consequences of the legislation are of deep and pressing importance to a complainant, such as the freedom to choose to abort, as in Morgentaler, supra; or to be properly represented at a child custody hearing, as in New Brunswick, supra; to take steps to avoid personal harm while engaging in the legal activity of prostitution, as in Canada (Attorney General) v. Bedford 2013 SCC 72; or to achieve access to effective pain medication, as in R. v. Smith 2015 SCC 34, [2015] S.C.J. No. 34.

[187] Even bearing in mind this high standard, I am inclined to agree with Judge Senniw in R. v Barinecutt, supra, at para 35, that the "overlong subjection to the vexations and vicissitudes" of an inability to pay, including continuing stigmatization; economic pressure; uncertainty as to outcome and sanction; and the punitive loss of access to licences, permits and sentence suspension applications, rises to the level of interference with the security of the person of those who are unable to discharge victim surcharge debts. That conclusion finds further support in the reality that, for individuals living on the margin, any payments that are made can literally take food off of the table.

[188] Still, I feel constrained to find that Ms. Madeley has not demonstrated that the victim surcharge infringes her security of the person based on poverty-based concerns. In coming to this conclusion I do not wish to be taken as agreeing that the adverse consequences of the victim surcharge for those who cannot pay promptly are not serious. I am convinced they are. I am bound, however, by two Ontario Superior Court summary conviction appeal decisions that hold that these consequences are not "grossly disproportionate." To be sure, the legal standards of "gross disproportion" and "psychological suffering," are different measures, but they each evaluate the severity of the effects of the provision. In light of this binding case law I cannot confidently find that the holding in R. v. Larocque, supra, that section 737 does not infringe the "security of the person" of those too poor to pay, is clearly wrong. Judicial comity therefore requires that I follow that decision, and deny the section 7 Charter complaints that relate to Ms. Madeley's poverty.

[189] This does not dispose of the section 7 claims in their entirety, because, as explained, not all of Ms. Madeley's Charter complaints are poverty-based. She contends that the victim surcharge is arbitrary and overbroad, regardless of poverty, because it applies even to "victimless crimes," and imposes a flat fee disconnected to the seriousness of the offence.

c. Is section 737 unconstitutionally arbitrary or overbroad generally?

[190] These claims that the victim surcharge is arbitrary and overbroad because it applies even to "victimless crimes," and imposes a flat fee disconnected to the seriousness of the offence, do cross the first section 7 hurdle. This is because the constitutional mischief complained of would touch everyone to whom section 737 would apply, rich or poor, and because those who are capable of paying do have liberty interests that are imperilled by the provision. This, of course, is because they can find themselves incarcerated for not paying a victim surcharge levied against them. The section 7 claims that are not linked to an inability to pay from poverty must therefore be resolved by testing whether the legislation is arbitrary or overbroad in the fashions described.

i. Is section 737 Arbitrary?

[191] The claim, of course, is that it is arbitrary to impose a flat fee victim surcharge on all offences, regardless of whether that offence creates a victim, and then to use funds for victims generally. I need not get into the finer debate about whether consuming alcohol in breach of a court order, or failing to live at an approved address is a "victimless crime" in order to reject this claim. In my view the Charter test for arbitrariness is not met.

[192] In R. v. Smith, supra, at para 23, the Supreme Court of Canada said that "a law is only arbitrary if it imposes limits on liberty or security of the person that have no connection to its purpose." In Carter, supra at para 83 it said that "arbitrariness targets the situation where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person."

[193] Arbitrariness has to be assessed, then, in light of the purpose of the law. As explained, section 737 has two purposes, raising funds for victim services, and holding offenders universally "accountable" for the payment of those services. Section 737 is therefore designed to accomplish exactly what was intended. It imposes a levy to raise funds for victim services, and it does so by holding all criminal offenders accountable for the payment of that fund. Whatever other objections can be raised about the legislation, it is not arbitrary given the test to be applied.

[194] I appreciate that the way the purpose is framed will determine the outcome of an arbitrariness challenge. Even if the purpose was described more narrowly by deleting the central policy plank of the most recent amendment of "universality," the outcome is the same. Even if one was to describe the purpose of section 737 as raising funds for victim services by holding criminal offenders to account for the costs of victim services, it would not be arbitrary for Parliament to decide to apply the levy regardless of the offence. As the debate that was held before me shows, it is not an easy matter to identify what crimes are "victimless," and what crimes are not. Nor is it unreasonable to take the view that since crimes are by definition, offences against the public, every crime makes victims of the public at large. Given this, there is a rational connection between the objective of funding victim services, and imposing a levy for all offences.

[195] As well, there is nothing arbitrary about adopting a flat fee approach to a fund-raising levy. This is a policy choice within the authority of Parliament and not one that a court can second-guess as arbitrary. Similarly, the decision to choose to impose a general levy and to pool funds for victims, rather than a restitutionary regime in which the funds go directly to the actual crime victim, is not arbitrary. That is again, a policy choice well within the authority of Parliament.

ii. Is section 737 Overbroad?

[196] Nor is section 737 law overbroad, on the footing that it applies even to victimless crimes. "The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object": Carter, supra. Once again, whatever other complaints can be made about section 737, it does not overshoot its mark. A policy decision was made to apply the levy generally, and that is what the law does.

V. Conclusion

[197] I am therefore persuaded that section 737 is in prima facie violation of section 15, but that it does not offend section 7 of the Charter based either on arbitrariness of overbreadth complaints, whether related to the inability to pay or not.

[198] Having found a prima facie violation of section 15, I will invite the parties to make further submissions relating to section 1.

Released March 1, 2016

The Honourable Justice David M. Paciocco