ONTARIO COURT OF JUSTICE

CITATION: R. v. Milne, 2019 ONCJ 116

DATE: 2019 02 27

City of Kawartha Lakes

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Samuel Kenneth Milne

Before Justice R. Beninger

Reasons for Ruling on Application released on February 27, 2019

Application for Change of Terms and Conditions of Fine Order

In Chambers

Beninger J.:

[1] On July 19, 2018, I convicted Samuel Milne of an ‘over 80’ offence and fined him $1,000. In addition, a victim surcharge of $300 was levied in accordance with s. 737 of the Criminal Code.

[2] On December 14, 2018, the Supreme Court of Canada declared s. 737 of the Criminal Code to be of no force and effect immediately, in the case of R. v. Boudreault, 2018 SCC 58.

[3] The victim surcharge was found to constitute cruel and unusual punishment and therefore to violate s. 12 of the Canadian Charter of Rights and Freedoms.

[4] On January 16, 2019, Mr. Milne brought an Application for Change of Terms and Conditions of Fine Order.

[5] A total of $1,255 (of which $300 is the victim surcharge) remains outstanding on the fine order. In his application, Mr. Milne stated that he was unemployed and that “I need more time to find a job and save more money.”

[6] The Crown Attorney’s office was given notice of Mr. Milne’s application and advised that consideration was being given to vacating the victim surcharge of $300. The Crown’s office was given 15 days as an opportunity to provide written submissions. The Crown’s office responded on Feb. 13, 2019, stating “We will not make submissions on this, nor oppose His Honour’s proposal.”

[7] In para. 109 of R. v. Boudreault, the Court noted possible remedies for persons in Mr. Milne’s position.

[8] One remedy was that private parties may be able to seek relief in the Courts by recourse to s. 24(1) of the Charter. That would require a further application by Mr. Milne, in compliance with the requirements of a s. 24(1) Charter application.

[9] There are many persons who owed outstanding victim surcharges as of the date the legislation was struck down. I am not aware of any appellate court authority suggesting that compelling all of those persons to bring s. 24(1) Charter applications serves any useful purpose. Our justice system is tasked with setting priorities for its limited resources. It does not need to be burdened with unnecessary applications.

[10] The Supreme Court of Canada further noted in para. 109 that,

“Government and Parliament also have options to attend to their responsibility to ensure that Charter rights are protected. The government could proceed administratively, while Parliament may act to bring a modified and Charter-compliant version of s. 737 back into the Code and to resolve the outstanding Charter concerns identified here.”

[11] As of the present date, the government has not provided an administrative remedy. Parliament has not acted to resolve the identified Charter concerns.

[12] The potential prejudice of an outstanding victim surcharge to persons in Mr. Milne’s position is real. The effects are reviewed in detail in para. 65 through 79 of the decision in R. v. Boudreault. As stated by Justice Martin in para. 76,

“The ultimate effect of the surcharge is that it creates a de facto indefinite criminal sanction for some offenders.”

[13] On Feb. 15, 2019, the Ontario Court of Appeal made the following appeal book endorsement in the case of R. v. Gaetan, [2019] OJ No. 767:

“The appellant wants to abandon his appeal. The appeal is dismissed as abandoned. If there is a victim fine surcharge in the appellant’s sentence (this is unclear), it is vacated.”

[14] Mr. Gaetan received a remedy for any victim fine surcharge that he had outstanding.

[15] As a matter of fairness and equity, I find it to be a logical and reasonable inference that a similar remedy should be available to persons in Mr. Milne’s circumstances.

[16] I am not going to require Mr. Milne to bring an additional application under s. 24(1) of the Charter. I am going to infer that, by bringing an application for a change of terms and conditions of fine order, Mr. Milne is requesting a remedy with respect to the outstanding victim surcharge which forms part of the fine order. I take into consideration the principles as set out in R. v. Boudreault, supra.

[17] The victim surcharge of $300 in Mr. Milne’s order is vacated.

Released: February 27, 2019

Signed: Justice R. Beninger