Court File and Parties

Ontario Court of Justice

Date: April 24, 2019

Court File No.:

• 3911-998-17-C1856
• 3911-998-17-C1857
• 3911-998-18-C83
• 3911-998-18-C114

Between:

Her Majesty the Queen

— and —

Boe Seguin

Before: Justice Gilles Renaud

Heard by way of: Basket Motion – Extension of Time to Pay Fine

Reasons for Judgment released on: April 24, 2019

Counsel:

• Boe Seguin – Self-represented

Judgment

RENAUD J.:

Introduction

[1] On April 8, 2019, Mr. Seguin sought an extension of time within which to pay five distinct victim fine surcharges of $100.00 imposed by the undersigned as a result of findings of guilt made on April 9, 2018. As is invariably the case, Mr. Seguin sought this relief by means of a written application setting out his quite precarious financial situation. Although granted one year within which to pay these fines, he made no payments of any kind and the reasons for this situation are discussed fully in the body of the application. In this instance, but for the reasons set out herein, the Court would have granted an extension of time.

[2] When the Court received the document, however, it had just completed reviewing a number of judgments of the Court of Appeal for Ontario on the issue of what should take place in the case of victim fine surcharges that had been imposed prior to the legislation being found unconstitutional by the Supreme Court of Canada in the case of R. v. Boudreault, 2018 SCC 58. The undersigned went on to examine all other cases from our Court of Appeal and concluded that no victim fine surcharges could be collected in the future, and that all such fines paid in the past had to be refunded.

[3] Having considered the matter fully, as noted, the Court found that no useful purpose would be gained by consulting the Crown Attorney for the United Counties of Stormont, Dundas and Glengarry as the issue is now beyond controversy. To tax the prosecution's office with the burden of addressing each such case would be to fail to apply the lessons advanced by our highest Court in the seminal case of R. v. Jordan, 2016 SCC 27.

[4] Indeed, I am of the view that the procedure followed is consonant with the guidance put forward by our Court of Appeal in R. v. Felderhof (2003), 68 O.R. (3d) 481, as discussed ably by Justice Guy Cournoyer in his article, "Case Management Powers: From Felderhof to Jordan". Refer to pages 221-248 of To Ensure That Justice Is Done Essays in the Memory of Marc Rosenberg. Edited by B.L. Berger, E. Cunliffe and Justice J. Stribopoulos, Thomson Reuters, Toronto, 2017.

[5] Accordingly, the application for an extension of time was not allowed. The Court has endorsed by means of this written decision that the Order it made on April 9, 2018, be struck out. In the result, the five individual victim fine surcharges of $100.00 in respect to an offence of mischief, two offences of breach of probation and two breaches of s. 145 of the Criminal Code respecting breaches of judicial release orders are found to have been imposed in conformity with an unconstitutional law, and are thus null.

Discussion

[6] It will be convenient to address this controversy by means of three thematic headings in which each judgment of the Court of Appeal for Ontario touching upon this controversy is reviewed.

The Crown's Concession that the Legislation was Held to be Unconstitutional

[7] Consider the brief reasons on this point found at para. 5 and 6 of R. v. J.D., 2019 ONCA 138, as penned by MacPherson, Sharpe and Tulloch JJ.A. on February 14, 2019, albeit in the context of an Appeal Book Endorsement:

5 […] The Crown concedes that the imposition of a victim fine surcharge is now unconstitutional.

6 Accordingly, the sentence appeal is dismissed, except for the portion of the sentence imposing a victim fine surcharge, which is set aside.

[8] Although there was no reference to the case of R. v. Boudreault, 2018 SCC 58, it is obvious that the prosecution's concession was based on that decision by our highest Court. At all events, if the legislation was ruled to be unconstitutional, no fines imposed previously can survive and all must be remitted, especially when an offender seeks an extension of time within which to pay such sums. The Court has derived signal assistance from the judgment in R. v. Milne, 2019 ONCJ 116 in this respect.

[9] Note as well R. v. Porter, 2019 ONCA 114, an Appeal Book Endorsement of MacPherson, Sharpe and Tulloch JJ.A., dated February 14, 2019, at para. 4:

"Finally, it is conceded by the Crown that the victim fine surcharge must be set aside."

[10] About a week later, we note language of agreement as opposed to concession, but the result was the same in the case of R. v. Drysdale, 2019 ONCA 129, which includes these remarks, consigned by MacPherson, Sharpe and Tulloch JJ.A. on February 20, 2019:

"3 The Crown agrees that the victim fine surcharge should be set aside."

[11] The Reasons for Decision of Juriansz, Watt and Harvison Young JJ.A. in R. v. Nicholson, 2019 ONCA 320, released yesterday, include these remarks:

"[9] Leave to appeal sentence is granted. The victim fine surcharges imposed on the appellant are set aside, with the agreement of the Crown. The appeal is otherwise dismissed."

[12] The Prosecution conceded this issue in a further case, as made plain by the Reasons for Decision filed in the case of R. v. Khou, 2019 ONCA 189, by Juriansz, Pepall and Lauwers JJ.A., dated March 11, 2019. As we read:

12 On the sentence appeal, we are not persuaded that the trial judge made any erroneous findings of fact. It was open to her to find the appellant played a central role in the fraud, and that he enlisted others in carrying it out. The Crown concedes that the mandatory victim fine surcharge order included in the sentence should be set aside. [Emphasis added]

R. v. Boudreault, 2018 SCC 58, is Dispositive of this Issue

[13] Leaving aside the foregoing, it will be of assistance to quote other cases in which R. v. Boudreault, 2018 SCC 58, was invoked in order to make plain that all victim fine surcharges were imposed in conformity with a fatally flawed scheme, and must be reimbursed, without any further authority being required.

[14] Consider firstly the Reasons for Decision in R. v. Fiddes, 2019 ONCA 27, by Simmons, Lauwers and Trotter JJ.A. [January 16, 2019] as they provide this binding instruction:

9 […] We also set aside the mandatory victim fine surcharge the trial judge had imposed: R. v. Boudreault, 2018 SCC 58. The remaining terms of the original sentence remain in full force and effect.

[15] A few weeks later, on January 29, 2019, Simmons, Lauwers and Trotter JJ.A. wrote the following in R. v. Wang, 2019 ONCA 61, in the context of an oral endorsement:

"5 The Crown concedes that the victim fine surcharge should be set aside."

[16] The next case of interest is R. v. Harris, 2019 ONCA 193, decided by Rouleau, Trotter and Zarnett JJ.A., in which judgment occurred on March 12, 2019. As we read:

15 The appellant requests that, in light of the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58, the mandatory $200 victim surcharge imposed by the trial judge should be set aside. The respondent does not oppose this request. Accordingly, we set aside the victim surcharge.

[17] The next day, March 13th, 2019, the reserved judgment in R. v. Girn, 2019 ONCA 202, was released. Penned by Watt J.A., with the support of Hoy A.C.J.O. and Then J. (ad hoc), it concludes with these relevant remarks:

"100 I would dismiss the conviction and sentence appeals in their entirety, other than to remit any victim fine surcharge that has been paid in light of the Supreme Court's decision in R. v. Boudreault, 2018 SCC 58 […]"

[18] In this vein, R. v. Henry, 2019 ONCA 229, dated March 21, 2019, records these remarks of Rouleau, Miller and Fairburn JJ.A. on this subject in the context of Reasons for Decision:

"7 Finally, with respect to the victim fine surcharge, the Crown concedes that in light of the recent decision in R. v. Boudreault, 2018 SCC 58, the victim fine surcharge ought to be removed.

[19] Under this rubric, the case of R. v. Stockton, 2019 ONCA 300, is also of interest. Decided on April 16, 2019, by Benotto, Brown and Fairburn JJ.A, it includes these germane observations:

"4 … On consent, we would vacate the $600 victim fine surcharge imposed in light of the fact that the relevant statutory provision has been found unconstitutional: R. v. Boudreault, 2018 SCC 59."

[20] Noteworthy as well are the two judgments that follow, the only decisions found on this point arising from other appellate courts. In the first, R. v. Ahmed, decided on March 22, 2019, the Alberta Court of Appeal held at para. 21: "The parties agree that the victim fine surcharge should be set aside in light of R. v. Boudreault, 2018 SCC 58. We so order." To the same effect is the judgment in Greer v. R., 2019 NBCA 25, at para. 4.

Simple Examples of the Victim Fine Surcharge Being Set Aside

[21] In the case of R. v. McWatters, 2019 ONCA 46, Simmons, Lauwers and Trotter JJ.A. produced Reasons for Decision on January 24, 2019, that included these remarks:

2 He received a total sentence of 10 years and 3 months' imprisonment in addition to pre-sentence custody credited at 4.68 years for an effective sentence of 15 years' imprisonment. An order was also made under s. 743.6 of the Criminal Code recommending that the appellant serve half of his sentence before becoming eligible for parole. The trial judge also imposed the victim fine surcharge.

7 […] Finally, we agree that the victim fine surcharge should be set aside.

8 Therefore, leave to appeal sentence is granted and the appeal is allowed, but only to the extent of clarifying the s. 743.6 issue and setting aside the victim fine surcharge …

[22] An Appeal Book Endorsement styled R. v. R.G., 2019 ONCA 135, dated February 21, 2019, under the signatures of MacPherson, Sharpe and Tulloch JJ.A. includes these direct remarks:

"9 The victim fine surcharge ($1,700) is vacated."

[23] A further example is found in R. v. D.W., 2019 ONCA 139. MacPherson, Sharpe and Tulloch JJ.A. endorsed these remarks on February 21, 2019, in the context of an Appeal Book Endorsement:

"8 The conviction appeal is dismissed. The sentence appeal is allowed, but only to the extent of vacating the victim fine surcharge."

[24] In the case of R. v. Omar, 2019 ONCA 221, consisting of an oral judgment released on March 19, 2019, by Watt, Hourigan and Huscroft JJ.A., we read:

"10 … Nor is any dissatisfaction expressed about any ancillary order, apart from the victim surcharge.

11 We grant leave to appeal sentence and set aside the victim surcharge, but otherwise dismiss the sentence appeal."

[25] Earlier, the Panel noted at para. 1:

"[…] The usual catalogue of ancillary orders followed the convictions."

[26] On February 20, 2019, an Appeal Book Endorsement signed by MacPherson, Sharpe and Tulloch JJ.A. and styled R. v. Hall, 2019 ONCA 130, was released. It included these comments:

"1 The victim fine surcharge (7 fines totaling $900) is set aside. The appeal is allowed to that extent. In all other respects, the appeal is dismissed as abandoned."

[27] In R. v. Gaetan, 2019 ONCA 118, MacPherson, Sharpe and Tulloch JJ.A. wrote on February 15, 2019, in an Appeal Book Endorsement:

"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."

[28] In other words, the Court was prepared to set aside such an order without even having counsel assert positively that such an order was in place.

[29] The appeal bearing the name R. v. Ochrym, 2019 ONCA 272, dated April 8, 2019, saw Feldman, Trotter and Fairburn JJ.A. include these comments, as found in the Reasons for Decision:

"5 Those terms remain in place together with any other orders that the sentencing judge made at the time except for the victim fine surcharge."

Conclusion

[30] In the result, the Court concludes that all of the victim fine surcharges imposed in the case of Mr. Boe Seguin were imposed in application of an unconstitutional provision of the Criminal Code and each is directed to be set aside and no enforcement measures may be undertaken at any future time.

Released: April 24, 2019

Signed: Justice Gilles Renaud