Ontario Court of Justice
Date: 2019-11-22 Court File No.: Newmarket 18-07038
Between: Her Majesty the Queen — and — Alba D'Alelio
Endorsement
Ex-Parte Application for Fine Extension
KENKEL J.:
[1] On November 13, 2018, Ms. D'Alelio was fined $1,600 and a $480 Victim Fine Surcharge was imposed.
[2] On December 14, 2018 the Supreme Court of Canada declared that the victim fine surcharge provisions of the Criminal Code that were in effect between October 24th of 2013 and that date were unconstitutional and invalid.
[3] Ms. D'Alelio was sentenced under the former invalid VFS provision. Typically the law does not permit those who did not appeal their sentence to re-open their files if an offence or sentencing provision is found invalid – R v. Boudreault, 2018 SCC 58 at para. 104. However, the Supreme Court in Boudreault noted that this provision is an exception. The mandatory victim surcharge violates s. 12 not only when it is imposed but every time it is enforced. "Each time a convicted person shows up to court … to provide an update on their financial status, the presiding judge is, in effect, confirming the operation of the victim surcharge. That confirmation is contrary to the Court's finding in this case. … At each appearance, the presiding court is put in the position of having to affirm the very elements of the law that render it cruel and unusual punishment." Boudreault at para. 106.
[4] The Supreme Court concluded, "The fact that, at any moment in the cycle of enforcement, the current state of affairs may constitute a s. 12 violation means that res judicata ought not operate to bar an application for relief from that state of affairs." The court called upon trial courts to consider a variety of possible remedies with a clear direction not to continue the s. 12 violation. In this case to extend time to pay an invalid fine would be contrary to that direction.
[5] Accordingly, I must vacate the $480 Victim Fine Surcharge imposed on Ms. D'Alelio. Time to pay the remaining fine has been dealt with on the application.
Ordered: November 22, 2019.
Justice Joseph F. Kenkel