Court File and Parties

Ontario Court of Justice

Date: July 9, 2019

Court File No.: 3911-998-18-C562

Between:

Her Majesty the Queen

— and —

David Savoie

Before: Justice Gilles Renaud

Heard by way of a basket motion – Extension of Time to Pay Fine

Reasons for Judgment released on July 9, 2019

David Savoie ...................................................................... Self-represented

Reasons for Judgment

RENAUD J.:

Introduction

[1] On June 4, 2019, Mr. Savoie sought an extension of time within which to pay a $200 victim fine surcharge which I imposed on June 11, 2018, in respect to an offence of assault (in a domestic context) contrary to s. 266 of the Criminal Code. As is invariably the case, Mr. Savoie sought this relief by means of a written application setting out his quite dire financial situation. Although granted one year within which to pay this fine, he made only a five dollar payment.

[2] For the reasons set out below, the victim fine surcharge is struck out. In summary, I conclude that the Court of Appeal for Ontario has consistently ruled that such orders are of no effect as the enabling legislation was found to be unconstitutional by the Supreme Court of Canada in the case of R. v. Boudreault, 2018 SCC 58. As will be discussed, the Court of Appeal has held without exception that no victim fine surcharges could be collected in the future, and that all such fines paid in the past had to be refunded, as noted briefly in R. v. Truong, 2019 ONCA 364, by Watt, Pardu and Nordheimer JJ.A., at para. 24, on May 3, 2019: "Leave to appeal sentence is granted, but the appeal from sentence is dismissed, save and except that the victim surcharge ordered by the sentencing judge is set aside and any funds paid as a result of its imposition ordered returned to the appellant."

[3] In considering this matter, 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 (and there are hundreds of such applications each year) 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 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. In this context, note the extraordinary remedial intervention shown by the Court of Appeal in R. v. Magdales, 2019 ONCA 572, per Watt, Tulloch and Lauwers JJ.A.: "[12] The appellant did not appeal sentence. However, with the concurrence of the respondent, we would extend the time for him to do so, grant leave to appeal and allow the appeal from sentence, and set aside the victim surcharge ordered by the trial judge…"

Discussion

[5] It will be convenient to address this controversy by means of four thematic headings in which each judgment of the Court of Appeal for Ontario touching upon this controversy is reviewed, followed by a brief examination of non-Ontario case law.

1) The Crown's concession that the legislation was held to be unconstitutional

[6] At the outset, I point to the instruction on this issue 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.

[7] 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, not being aware of the judgment in R. v. Boudreault.

[8] 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."

[9] 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."

[10] The Reasons for Decision of Juriansz, Watt and Harvison Young JJ.A. in R. v. Nicholson, 2019 ONCA 320, released two days ago, 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."

[11] 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]

[12] This question was addressed quite briefly at para. 1 of R. v. Latif, 2019 ONCA 309. Benotto, Brown and Fairburn JJ.A. wrote on April 17, 2019: "… He advances two grounds of appeal. The first is that the victim surcharge imposed must be set aside; the Crown agrees …"

[13] In the quite recent case of R. v. Lo Verde, 2019 ONCA 467, the Appeal Book Endorsement of Feldman, van Rensburg and Huscroft JJ.A., concludes with these remarks: "6 … The Victim fine surcharge is set aside on consent." More recently, Doherty, Watt and Pardu JJ.A. wrote: "3 … The victim surcharge is set aside on consent." Refer to R. v. Opoku, 2019 ONCA 500, an Appeal Book Endorsement.

2) R. v. Boudreault, 2018 SCC 58 is dispositive of this issue

[14] 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.

[15] Consider firstly the Reasons for Decision in R. v. Benhassen, 2019 ONCA (C.A. In Chambers), released on May 28, 2019, and not available on the Ontario Court of Appeal website. Doherty J.A. wrote the following:

5 I see no reason to grant leave to appeal the jail term imposed. The parties agree, however, that in light of R. v. Boudreault, 2018 SCC 58, the victim fine surcharge should be set aside. I would grant leave to appeal the imposition of the victim fine surcharge only.

6 Counsel advise that the appeal on that issue will go on consent. I have told counsel to file the necessary documentation so the matter can be placed before a panel for disposition as an appeal in writing.

[16] Consider as well 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.

[17] 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."

[18] 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.

[19] 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 […]"

[20] I wish to pause briefly to point out that the undersigned has derived signal assistance from the judgment in R. v. Milne, 2019 ONCJ 116 in this respect, as the judgment of Beninger J. was instrumental in signaling the solution to this thorny issue.

[21] At all events, in R. v. Henry, 2019 ONCA 229, dated March 21, 2019, we read 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.

[22] 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."

[23] Noteworthy as well are the two judgments that follow, arising from other appellate courts. In the first, R. v. Ahmed, 2019 ABCA 107, 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. Refer as well to Part 4 for other non-Ontario cases.

3) Simple examples of the victim fine surcharge being set aside

[24] 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: 7 […] Finally, we agree that the victim fine surcharge should be set aside.

[25] 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."

[26] 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."

[27] 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."

[28] Earlier, the Panel noted at para. 1: "[…] The usual catalogue of ancillary orders followed the convictions."

[29] 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."

[30] 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." 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.

[31] 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."

[32] Doherty, Benotto and Huscroft JJ.A. remarked at para. 7 of R. v. Sullivan, 2019 ONCA 412, dated May 17, 2019: "… The parties also agree that the victim surcharge should be deleted…" In R. v. Payette-McLean, 2019 ONCA 471, Feldman, van Rensburg and Huscroft JJ.A. commented, in the course of Reasons for Decision: "[4] Therefore, while leave to appeal sentence is granted the appeal is dismissed. The court also sets aside the $400 victim fine surcharge." The Reasons for Decision in R. v. Ballantine, 2019 ONCA 498, per Hoy A.C.J.O., Hourigan and Paciocco JJ.A., conclude with these remarks: "[24] ... Leave to appeal sentence is granted and the victim surcharge order is quashed. The sentence imposed is otherwise unaltered." In the case of R. v. Altiman, 2019 ONCA 511, Brown J.A. wrote (with the concurrence of Benotto J.A.): "[119] As well, I would set aside the victim impact surcharges imposed on Mr. Altiman." Justice Sharpe disagreed with the resulting sentence, but did not express any reservations as to this element of the outcome.

[33] Turning to authority from the Superior Court of Ontario, in the case of R. v. Franco, 2019 ONSC, Schreck J. wrote at para. 50: "… If the appellant was ordered to pay a victim fine surcharge, that order is set aside: R. v. Boudreault, 2018 SCC 58, R. v. Seguin, 2019 ONCJ 247." In the case of R. v. Bullock, 2019 ONSC 3504, Sheard J. observed at para. 21: "… He also appeals the $300 victim fine surcharge imposed as part of his sentence. The Crown consented to the sentence appeal and the victim fine surcharge was set aside."

4) Guidance from other Courts

[34] Having briefly pointed to cases from Alberta and New Brunswick at para. 20, the Court proposes to consider the instruction found from other levels of Court.

4a) R. v. Boudreault, 2018 SCC 58 is dispositive of this issue

[35] The first case to be examined is quite persuasive and could be quoted at length to justify fully the conclusion reached by the undersigned, without more authority. Indeed, in R. v. Napayok, 2019 NWTTC 3, Justice Malakoe provides a very well-reasoned decision setting out why the victim fine surcharge scheme no longer operates and explaining why any outstanding order directing payment of such fines is without legal effect. In light of the ability of the Court to address this issue fully and concisely, I have set out below paragraphs 4 to 7:

4 The majority decision in Boudreault struck down section 737 in its entirety, with immediate effect. It declared that the victim surcharge as authorized by section 737 was a cruel and unusual punishment contrary to section 12 of the Charter of Rights and Freedoms. The Crown did not seek to justify or "save" section 737 pursuant to section 1 of the Charter.

5 The Court in Boudreault did not direct how the Court should deal with offenders who were subject to victim surcharges and for whom the appeal period had passed. The Court suggested, at paragraph 109, "that a variety of possible remedies exist" for such persons, including by way of an application under section 24(1) of the Charter.

6 In its factum, counsel for Ms. Napayok outlines five arguments in favour of the proposition that enforcing payment of the surcharges would be illegal and unconstitutional:

9. First, the Supreme Court has struck down section 737 as unconstitutional. Pursuant to section 52 of the Constitutional Act, 1982 any law which is contrary to the constitution is "of no force and effect". There is simply no longer a law in force in Canada which permits a court to make an order for payment of a victim surcharge penalty. As section 737 was struck down it its entirety, there is also no longer a legal means by which to enforce any orders previously made: subsection 737(9) had adopted the enforcement mechanisms applicable to fine orders to the situation of the surcharges but that provision has also now been struck down.

10. In a democracy governed by the Rule of Law, it is a most basic proposition that punishment -- or any other form of state action against an individual -- must be authorized and permitted by law. Simply put, there is no longer a law in Canada which authorizes or permits any enforcement of a previously-issued surcharge order.

11. Second, in the specific context of the criminal law, the constitutional principle just stated finds statutory expression in section 6(1)(b) of the Criminal Code. That provision provides that only punishment prescribed by the Code itself (or any other authorizing enactment) is to be imposed upon conviction. As of December 14, 2018, the Criminal Code no longer provides for imposition or enforcement of a victim surcharge penalty.

12. Third, as a statutory court, the Territorial Court of the Northwest Territories may only act where authorized by law. It does not have inherent authority or jurisdiction. Therefore, with the striking down of section 737, this Court has lost any power to impose, or to enforce, an order for payment of the victim surcharge.

13. Fourth, to now seek to enforce a penalty for which there is no legal foundation would also be contrary to the "principles of fundamental justice" contemplated by section 7 of the Charter. There can be no issue, it is submitted, that the requirement for a proper foundation in law of any penalty or punishment is one of, if not the most basic foundational principles of our legal system. Furthermore, the steps which could have been taken against a non-paying offender under section 737 prior to December 14, 2018 included imprisonment (subs. 737(9) and s. 734) so the liberty interest of the subject is clearly engaged.

14. Finally, as the Supreme Court noted in paragraphs 106 and 107 of Boudreault, for a court to take any enforcement measures against a person previously ordered to pay the surcharge would put the court itself in the position of continuing the infliction of a punishment which is cruel and unusual, contrary to section 12 of the Charter.

7 The Crown is not contesting Ms. Napayok's application. I accept and adopt the above-noted arguments submitted by her counsel.

[36] The Court went on to state in terms of the issue of a remedy:

9 In providing a remedy to Ms. Napayok, my remarks are specific to the victim surcharges which were imposed under section 737 of the Criminal Code as it read on December 14, 2018. To be clear, these remarks do not apply to victim surcharges imposed under section 737 of the Criminal Code prior to October 24, 2013; nor under the Territorial legislation, the Victims of Crime Act, R.S.N.W.T. 1988 c.9 (Supp.); nor under section 53 of the Youth Criminal Justice Act.

10 I note, in passing, that section 737 of the Criminal Code applied only with respect to offences under the Criminal Code and the Controlled Drugs and Substances Act. Accordingly, the victim surcharges imposed on an adult offender with respect to a violation of section 137 of the Youth Criminal Justice Act would appear to be invalid.

11 In my view, it would be contrary to the Charter to enforce the orders for payment of victim surcharges against Brittany Napayok. Accordingly, I declare that effective immediately, the orders for these victim surcharges, in the amount of $935.00, are not enforceable and I direct the Clerk of the Territorial Court to take no action to enforce payment.

[37] In R. v. Kowtak, 2019 NUCJ 3, Justice Charlesworth wrote:

48 The Justice of the Peace also applied the mandatory victim fine surcharge. The victim fine surcharge is no longer payable. The appellant's appeal was heard after the Supreme Court of Canada released R v Boudreault, 2018 SCC 58, which declared victim fine surcharges unconstitutional with immediate effect, therefore, she is eligible to and shall have the victim fine surcharge removed from her sentence.

The Alberta Court of Appeal addressed this issue briefly in R. v. Chowdhury, 2019 ABCA 205 at para. 23, on May 23, 2019: "… Crown counsel concedes that in light of the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58, the $1050 victim surcharge imposed is vacated."

4b) Courts may now waive the surcharge as a matter of discretion

[38] R. v. Dunbar, 2019 NSSC 96, sets out how this line of cases is to be understood:

77 The sentencing Judge also imposed a victim fine surcharge ("VFS") upon Ms. Dunbar, allowing her five years within which to pay it. Given that I now have the ability to do so, on the basis of R. v. Boudreault, 2018 SCC 58, (a decision which was handed down after the sentencing judge's decision in this case) I will waive the imposition of the victim fine surcharge. Ms. Dunbar's present financial circumstances are such that she would incur significant hardship if the VFS were to remain extant.

[39] The same conclusion was reached in R. v. Alas, 2019 NSSC 68: "28 Given that it would impose undue hardship, given the period of imprisonment to which you will be subject and the recent case authorities which have in effect restored my ability to do so, I will waive the imposition of the victim fine surcharge." See also para. 11 of R. v. Scordino, 2019 ONSC 1977.

4c) The scheme is no longer valid

[40] Note R. v. Blumenthal, 2019 NSSC 35, a judgment of Chipman J., at para. 36: "The Victim Fine Surcharge provision has been declared invalid as of December 14, 2018 and should not be imposed: R. v. Boudreault, 2018 SCC 58." In R. v. Pijogge, 2019 NLSC 15, Knickle J. wrote at para. 59: "Given the recent decision of R. v. Boudreault, 2018 SCC 58, there will be no victim fine surcharge." In the case of R. v. Rich, 2019 NLSC 37, Knickle J. endorsed the same comments at para. 49, as did the Court at para. 63 of R. v. Murphy, 2019 NSSC 77, and the Court in R. v. Joyce, 2019 NLSC 77 at para. 55. See as well R. v. Gill, 2019 BCSC 465, at para. 47.

[41] In this vein, I conclude by noting that in R. v. Chand, 2019 BCSC 547, the Court remarked at para. 10 that the prosecution was seeking a victim fine surcharge, which was not allowed.

Conclusion

[42] In the result, the Court concludes that the victim fine surcharge imposed in this case was imposed in application of an unconstitutional provision of the Criminal Code and it is directed to be set aside and no enforcement measures may be undertaken at any future time. As noted by Justice Malakoe in R. v. Napayok, 2019 NWTTC 3, at para. 5: "The Court in Boudreault did not direct how the Court should deal with offenders who were subject to victim surcharges and for whom the appeal period had passed. The Court suggested, at paragraph 109, 'that a variety of possible remedies exist' for such persons, including by way of an application under section 24(1) of the Charter." In my considered opinion, this is a valid procedure in light of the absence of any factual or legal controversy, and the most expeditious, uncomplicated and inexpensive means of ensuring a proper remedy to the applicant.

[43] In addition, the $5 payment must be refunded, in accordance with R. v. Truong, 2019 ONCA 364, para. 24.

The Honourable Mr. Justice Gilles Renaud

Released: July 9, 2019

Footnote

[1] Le procès de M. Savoie a été instruit en français mais il a déposé cette demande en anglais et la Cour a donné suite à son nouveau choix suivant l'art. 530 du Code criminel. S'il désire obtenir ce jugement en français, je vais lui fournir une version dans cette langue.

[Translation: Mr. Savoie's trial was conducted in French but he filed this application in English and the Court gave effect to his new choice pursuant to s. 530 of the Criminal Code. If he wishes to obtain this judgment in French, I will provide him with a version in that language.]