Court Information

Ontario Court of Justice

Date: June 27, 2019

Parties

Between:

City of Toronto Appellant

— And —

Moulham Alharirie, Abdirisaq Ali, Mohammed Avunhippuram, Warren Brewster, Nabil Mousa and Stefan Trohonel Respondents

Before the Court

Before: Justice L. Chapin

Heard on: June 6, 2019

Reasons for Judgment released on: June 27, 2019

Counsel

Ms. Lisa Solish — counsel for the City of Toronto

Mr. Warren Brewster — on his own behalf

No appearance by or on behalf of Moulham Alharirie, Abdirisaq Ali, Mohammed Avunhippuram, Nabil Mousa and Stefan Trohonel

Jurisdiction

On appeal from Justice of the Peace Marum's sentencing decisions with respect to the Respondents on January 24, 2019 and January 25, 2019.

CHAPIN J.:

Introduction

[1] The City of Toronto has appealed a number of sentencing decisions of Justice of the Peace Marum. In all of these cases the Justice of the Peace declared that there was to be no surcharge added to the fines he imposed after finding the Respondents guilty. In doing so he referred to the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58. The appeals were heard together given that they involved the same issue and the same jurist. Mr. Brewster appeared in person but did not file a factum and made no submissions. None of the other Respondents appeared or filed a response.

Issue

[2] The Appellant seeks a ruling that the Justice of the Peace erred in law in declaring that there would be no surcharge in addition to the fines he imposed after finding the Respondents guilty. The Appellant is not requesting a remedy with respect to these Respondents. In other words, the Appellant is not asking this court to impose the surcharge on these particular individuals but takes the position that the POA surcharge in section 60.1 is valid legislation that has not been impacted by the Supreme Court of Canada's decision in Boudreault, supra.

[3] On June 6, 2019 I gave brief oral reasons indicating that the Justice of the Peace had erred in law and advised that written reasons would follow. These are my reasons.

Factual Background

[4] On January 24, 2019 Mr. Ali pleaded guilty to a Highway Traffic Act (HTA) offence of failing to proceed as directed and was fined in the amount of $50.00. In the same sentence the court stated that there would be no surcharge.

[5] The prosecutor asked for, and was granted, permission to make submissions regarding the surcharge. The prosecutor took the Justice of the Peace through Boudreault, supra and pointed out a number of distinguishing features in an attempt to persuade the court that it did not apply to the surcharge section found in the POA. His submissions were detailed and consumed 13 pages of a 21 page transcript. The Justice of the Peace did not conduct an analysis of the law and said this:

Well, the way I'm looking at is, there are a lot of people here and each and every one of them, taking your argument and addressing that as the way to go, each and every one of them would have to pay additional money in addition to the fine. If the Supreme Court intended it to be other than that, that's unfair. So, my position is and, and it will not change, that it needs to be tested in a Higher Court. And, and you've put your comments on the record, and we'll go from there. I thank you.

[6] On the same day Mr. Alharirie pleaded guilty to an HTA offence before the Justice of the Peace and was fined in the amount of $60.00. The prosecutor made submissions that the decision in Boudreault, supra did not have any impact on the POA and pointed out that there was no Charter application before him. The court responded by saying the following:

..my opinion differs from that of the, the, the administration. So, therefore, I will add to the, to the fine the, the comment and, and, and it says no surcharge per Supreme Court of Canada. And, and I believe the, the, the, the decision, it does not specifically exclude the POA.

[7] And later in the transcript:

And, and they have – it doesn't, it doesn't exclude POA and, and as soon as – the sooner that it goes before a Higher Court and they make a decision, whether it includes or excludes POA, then we'll be fine. And in the meantime, we we've come up with the question of whether these good people should keep the money in their pocket because instead of waiting for the decision to be sorted out or whether the, the administration should keep their hard-earned cash in their pocket until the decision comes down and I believe that they should keep their money in their pocket until he final decision comes down. And it does need a decision for clarification because the, the area is foggy. The administration sees it one way, I see it another way and, and that's my decision.

[8] Mr. Avunhippuram also pleaded guilty to an HTA offence before the Justice of the Peace on January 24, 2019 and the court said "Okay, on your plea there will be a finding of guilty, conviction entered, be a fine of $50.00, a year to pay, victim surcharge – no victim surcharge".

[9] Mr. Trohonel was charged with speeding and his case was tried by the Justice of the Peace entertained on the same day. After a short trial he was found guilty of speeding and was fined $50.00 for speeding 23 kilometres–per-hour over the 60 kilometre-per-hour speed limit. The court had asked the prosecutor what had been offered earlier on a guilty plea, and when the prosecutor advised that it would not be appropriate for the court to consider a sentence out of the range for speeding 23 kilometres over the court responded by saying:

Well, I can because of the circumstances. You can, of course, appeal me if you wish. Everybody here, there was, there was, there was substantial amount of discomfort. There was almost – at one point I was looking at the door and thinking I'm out the door if it starts. And, the public were very annoyed and very upset at what was going on and, and everybody's entitled to their moment and, and the, the lawyer who was here, he's entitled to his. But, this gentleman has been here for two hours and five minutes so far. Not of his own doing. So, I am going to say, I'm going to say a $50.00, a year to pay and no surcharge per Supreme Court of Canada. That's my belief anyway. And I emphasize that, that I believe that the extraordinary conditions that existed here today, this man – being the second go around, the last time because there was no – lack, a lack of time, he deserves some kind of relief and, and I can't think how else to grant hat[sic] relief then by reducing the fine to $50.00. So thank you.

[10] The next day, January 25, 2019 the Justice of the Peace accepted guilty pleas from Mr. Brewster, and Mr. Mousa to HTA offences. In Mr. Brewster's case the prosecutor asked to make submissions after his worship fined him in the amount of $100.00 and stated that there would be no surcharge. Permission was granted and the prosecutor made brief submissions arguing that Boudreault, supra did not apply to provincial matters. The court responded by saying:

I've read that particular case and I don't recall any section in there that says "except POA". And, as I recall the history of this thing, the government chose to put the supplemental charges on the criminal and the POA people said, "me too". And then the government took it off the criminal and now the POA people are saying, "Oh not me though."

[11] Mr. Mousa pleaded guilty to proceeding through a red light and was fined $100.00 and his worship said "That's a hundred dollars, one year to pay and I'll endorse it like the rest of them, no surcharge per the Supreme Court of Canada. Okay".

Position of the Appellant

[12] The Appellant submits that the Justice of the Peace erred in law in relying on the Boudreault, supra decision to declare that no victim surcharge was to be imposed. The Appellant submits that Boudreault, supra is distinguishable because the Criminal Code victim surcharge as found in s. 737 operates in a very different manner than the surcharge found in s. 60.1 of the POA.

[13] As indicated earlier none of the Respondents made any submissions.

Analysis

Failure to Give Reasons

[14] Although not raised as a ground of appeal I note that the Justice of the Peace erred in law by failing to provide reasons that would allow meaningful appellate review. The Justice of the Peace made conclusory statements in each case that the surcharge would not be imposed in light of the Boudreault, supra decision.

It is well settled law that triers of fact are required to give reasons see: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. This is particularly so when a trier of fact is called upon to address an area of unsettled law: Sheppard supra para. 55. I am unable to determine why he came to the conclusion that the surcharge did not apply to provincial offences. In failing to provide reasons he erred in law.

There was no Constitutional Challenge to the Charter before the Court

[15] Section 109 of the Courts of Justice Act (CJA) requires that notice be served upon the Attorney General of Canada and the Attorney General of Ontario if the constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

[16] The notice requirement was considered in the context of provincial offences prosecuted by municipalities in R. v. Vellone, 2011 ONCA 785, 108 O.R. (3d) 481. In that case the accused was charged with a speeding offence and brought an application to have the charge stayed due to unreasonable delay pursuant to s. 11(b) of the Charter. At trial the Justice of the Peace declined to hear the application because notice had not been provided to the Attorney General of Ontario and transcripts of the prior appearances had not been ordered. Mr. Vellone was convicted after a trial.

[17] Mr. Vellone appealed the conviction and the Provincial Court Judge granted the appeal on the basis that notice was not required because the Province had entered into an agreement with the municipality. The court reasoned that the responsibility for bringing the matter to trial in a reasonable time rested with the municipality and not the Government of Ontario. He concluded that s. 109 of the CJA had no application to the proceeding.

[18] York Regional sought, and was granted, leave to appeal to the Court of Appeal. The Court of Appeal granted the appeal and explained at paras. 24 and 25 that the Government of Ontario retains oversight of the prosecutorial function to ensure that the municipal partners maintain performance standards required by the Province and also noted that the Province retained a right to take over a POA prosecution. See: s. 163 and 168 of the POA. At paragraph 27 the court noted that for those reasons the Provincial Court Judge had erred by holding that Mr. Vellone did not need to provide notice of his s. 11 Charter claim to the Attorney General of Ontario as required by section 109 of the CJA.

[19] In this case it appears that the Justice of the Peace was raising a constitutional challenge on his own motion. Section 109 of the CJA requires notice to the Attorney General of Ontario as well as the Attorney General of Canada in order to have an appropriate record before the court. No such notice was given and as result there was no proper record for me to review. The Justice of the Peace erred in law in this regard as well.

[20] An example of how this issue was dealt with properly can be found in R. v. MacKinnon, 2019 ONCJ 301. In that case Mr. MacKinnon had pleaded guilty to the offence of owning and operating a motor vehicle without insurance contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act. It was his second conviction within 6 months which meant that he was subject to a minimum fine of 10,000.00 dollars.

[21] Mr. MacKinnon brought an application pursuant to s. 59(2) of the POA which allows a court to impose a fine that is less than the minimum or suspend the passing of sentence if there are exceptional circumstances. The court declined to grant the application finding that the defendant had not established that there were exceptional circumstances.

[22] Mr. MacKinnon also brought a Charter challenge pursuant to sections 7 and 12 arguing that the POA surcharge should not be imposed in light of the decision in Boudreault, supra. At that point Justice of the Peace Hampson ensured that Mr. MacKinnon complied with s. 109 of the CJA and went on to consider the submissions of counsel and ultimately dismissed the application giving fulsome reasons.

Conclusion

[23] In conclusion I find that the Justice of the Peace erred by failing to provide reasons and in failing to comply with the notice requirements found in s. 109 of the CJA.

Released: June 27, 2019

Signed: Justice L. Chapin