CITATION: R. v. Sharkey, 2015 ONSC 1657

COURT FILE NOS.: 14-11593 (Sharkey) and 14-11299 (Rutledge)

DATE: 2015/03/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

JOANASSIE SHARKEY

CHRISTINE RUTLEDGE

Respondents

Julien Lalande and Louise Tansey, for the Crown

John Hale, for the Respondents

HEARD: February 23, 2015 (Ottawa)

REASONS FOR decision

PARFETT J.

[1] The Crown appeals the decision to waive the victim surcharge made by the Provincial Court in these two cases.

Background

[2] On August 5, 2014, Mr. Sharkey pleaded guilty to three summary conviction offences. On August 20, 2014, Christine Rutledge pleaded guilty to one summary conviction offence. In both cases, the Crown requested the imposition of the victim surcharge and in both cases, the presiding justice declined to impose the fines citing the judgment of R. v. Michael[^1].

[3] In the Michael case, the judge held that s. 737 of the Criminal Code [^2] (the “Code”), the victim surcharge as amended on October 24, 2013, violated s. 12 of the Canadian Charter of Rights and Freedoms[^3] (the “Charter”) and could not be saved by s. 1. Therefore, the judge ruled that the section was of no force or effect.

[4] The Crown contends that the Ontario Court of Justice (“OCJ”) does not have the authority to make general declarations of invalidity and, therefore, if another judge wished to follow the decision in Michael, they could only do so if, in each case, defence counsel filed a formal challenge to the constitutional validity of s. 737 of the Code and submissions were heard from both parties. According to the Crown, those steps were not taken in either of these cases. Consequently, in the Crown’s view, the judges in these cases were in error.

[5] Defence counsel concedes that the OCJ is not a court of inherent jurisdiction and as such cannot make declarations of general invalidity. In addition, he agrees that a number of judges in OCJ are choosing whether to impose the victim surcharge not on the basis of fresh constitutional attacks, but based on whether they agree or not with the Michael decision. These judges are using a very summary procedure to make this decision. However, he contends that the procedure used by the justices in these cases is entirely in keeping with the purpose of the rules of that court.

Issue

1. Was the appropriate procedure followed in each of these cases, such that the judges could apply the principles in the Michael case and decline to impose the victim surcharge?

Legal Principles

[6] Judges of the OCJ are free to follow a decision made by a colleague, although they are not bound to do so. However, the question then becomes what procedure must they follow in determining whether to follow a colleague’s decision or not?

[7] As noted earlier, only courts of inherent jurisdiction may make general declarations that enactments of Parliament are invalid.[^4] Although as a statutory court the OCJ has no declaratory jurisdiction, it does have jurisdiction to interpret and apply the Constitution.[^5] It flows from this situation that a decision of the OCJ on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises.[^6]

[8] The corollary to the limited jurisdiction of the OCJ as it relates to constitutional matters is that any legislation declared unconstitutional by the OCJ nonetheless remains valid legislation. Consequently, certain procedures must be followed before a judge of the OCJ can apply the decision of a fellow judge.[^7]

[9] Procedure in the OCJ is governed by both the Courts of Justice Act (“CJA”)[^8] and the Criminal Rules of the Ontario Court of Justice^9.

[10] Section 109(1) of the CJA sets out the appropriate procedure for challenging the constitutionality of a legislative provision. It states:

Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. 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.

2. A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

[11] Subsection 109(2) sets out the consequences of not providing appropriate notice:

If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be. [emphasis added]

[12] However, this procedure does not operate in a vacuum; it is impacted by the rules directly applicable to the OCJ. Those rules take into consideration the nature of the OCJ as a fast‑paced, high volume court. The relevant portions of Rule 1.1 of the Criminal Rules of the Ontario Court of Justice state:

(1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

(d) scheduling court time and deciding other matters in ways that take into account

(iv) the requirements of other proceedings.

[13] Consequently, any assessment of whether appropriate notice has been given must take into consideration both the requirement for notice as set out in s. 109 of the CJA and the rules of procedure of the OCJ.

[14] The Crown contends that in Sharkey and Rutledge, no effective notice of a constitutional challenge was given and, therefore, the decisions in those cases are a nullity.

[15] The Supreme Court of Canada addressed the issue of the effect of the absence of appropriate notice in Eaton v. Brant County Board of Education.[^10] The Court noted that:

While this Court has not yet addressed the issue of the legal effect of the absence of notice, it has been addressed by other courts. The results are conflicting. One strand of decision favours the view that in the absence of notice the decision is ipso facto invalid, while the other strand holds that a decision in the absence of notice is voidable upon a showing of prejudice.[^11]

[16] After reviewing the cases that deal with this issue, the Court goes on to say:

In view of the purpose of s. 109 of the Courts of Justice Act, I am inclined to agree with the opinion of the New Brunswick Court of Appeal in D.N. v. New Brunswick (Minister of Health & Community Services), [(1992), 1992 2805 (NB CA), 127 N.B.R. (2d) 383], and Arbour J.A. dissenting in Mandelbaum, [(1993), 1993 8505 (ON CA), 12 O.R. (3d) 385], that the provision is mandatory and failure to give the notice invalidates a decision made in its absence without a showing of prejudice. It seems to me that the absence of notice is in itself prejudicial to the public interest. I am not reassured that the Attorney General will invariably be in a position to explain after the fact what steps might have been taken if timely notice had been given. As a result, there is a risk that in some cases a statutory provision may fall by default. [citations added.]

There is, of course, room for interpretation of s. 109 and there may be cases in which the failure to serve a written notice is not fatal either because the Attorney General consents to the issue's being dealt with or there has been a de facto notice which is the equivalent of a written notice.[^12]

[17] Other cases have noted that the purpose of the notice requirement is to ensure that governments have full opportunity to support the constitutional validity of their legislation and that courts have a proper evidentiary record.[^13] However, the cases also note that there may be exceptions to a rigid application of the rule, such as those noted above where there is an “equivalent to notice” or where there is no prejudice to the Attorney General.[^14] In addition, it is possible to abridge the notice requirement.[^15]

[18] In the cases at bar, the issue is whether the Attorney General received sufficient notice of the fact that the constitutional question was going to be raised, thereby permitting it to properly prepare and answer the question. Defence argues that there was de facto notice in that the issue was being raised daily in the courts. Crown contends that even though the issue of the victim surcharge was raised daily, it was not given sufficient notice to decide whether it was going to litigate the issue.

[19] Assuming that appropriate notice has been provided, the next issue is whether the Crown was given sufficient opportunity to present meaningful argument.

[20] Procedural fairness requires that a party to a proceeding be permitted to make full submissions on any issue in dispute. As noted in R. v. Wetzel, “it is important to ensure that the court has the benefit of full argument and that the parties be given an opportunity to address all aspects of such an issue raised.”[^16] Furthermore, while a trial judge has the ability to control the proceedings before him, he must still do so in accordance with the principles of natural justice.[^17]

[21] A failure to permit parties to make meaningful submissions is an error of law.[^18]

Application of legal principles to the facts

[22] The cases concerning notice indicate clearly that where the matter involves the constitutionality of legislation, notice is particularly important. However, the failure to provide notice does not necessarily render the subsequent decision a nullity. The OCJ is subject to both the rules of that court and the CJA. But the rules are purposive and the court must interpret those rules to take into account the nature of the OCJ, as well as to ensure fairness to the parties and to the process as a whole.

[23] I agree that the nature of the OCJ makes formal notice of an issue that arises regularly impractical. However, I disagree that this means that no notice at all is required. The judges of the court can control their own process and, therefore, they can determine what form notice ought to take. In the cases at bar, no formal notice was given to the Crown. However, as stated by Defence, the issue of the victim surcharge was being raised daily in the courts. The Crown had already made two separate and lengthy arguments. It was already well prepared to make further arguments if it chose to do so. In my view, the lack of notice in these cases did not prejudice the Crown.

[24] The Crown concedes that they are not seeking formal notice in every case. They are content with abridged or even oral notice. What matters to the Crown is the opportunity to make meaningful submissions. They argue that the Michael decision is flawed and they should have the opportunity to attempt to persuade judges it ought not to be followed pending a decision from a higher court. Additionally, they contend that the inability to make meaningful argument is a breach of procedural fairness. I agree.

[25] In Sharkey[^19], the judge was concerned about the length of time that would be taken if formal notice and argument was required in each case given the busy nature of that court. Defence in his argument before me emphasized the same point. Again, I point out that the provincial court has the ability to govern its own process. But it cannot foreclose the process altogether. In Sharkey, the judge noted:

It should not be necessary in order to trigger that consideration [of the issue of the victim surcharge] for formal and pointless Charter challenges to be brought in every case. Those Charter challenges would be particularly pointless in a case where I am presiding. I have already made a determination, after tremendous reflection, that the victim surcharge is unconstitutional as cruel and unusual treatment and punishment. It would be inappropriate, in my view, to require a Charter application to be brought in every case that comes before myself or any of my brother or sister judges before they can consider the persuasive impact of that decision.

Again, the net effect of the Crown’s position is that in spite of my solemn conviction that the provision is of not force or effect, I am required by law to apply it simply because an offender may not have the wherewithal, the resources, the foresight or the time to bring a formal Charter application. In my view, that is not a reasonable position. It has nothing to commend itself as a matter of policy and it is not supported by law.[^20]

[26] With all due respect, this position is incorrect. The decision in Michael may have persuasive value but it does not constitute a binding precedent because the OCJ is not a court of inherent jurisdiction. Consequently, s. 737 of the Code is presumed to be valid and in conformity with the Charter.[^21] It cannot be ignored in subsequent cases. To foreclose any meaningful argument on the basis that the court is persuaded by the Michael decision effectively raises that decision to a declaration of general invalidity – something that decision can never be. As a result, a declaration must be made in each case and the parties must be given the opportunity to make meaningful submissions.

[27] In Rutledge, the following exchange took place:

Mr. Carew: We need to address the victim fine surcharge.

The Court: You don’t have to address it with me, because I’m following the Michael decision.[^22]

[28] The Crown proceeded to put some brief comments on the record and ultimately the court finds as follows:

The Court: Okay. So both of you. Any time the victim fine surcharge issue comes up I’m going to take it that you’ve made this submission on the case. I don’t want to hear it again this morning. For the record, I’m following the decision of Justice Paciocco in Michael and I’ve – even though I’m not bound by it, I agree with it and I am applying it.[^23]

[29] In the Rutledge case, it is apparent that not only was the Crown precluded from making meaningful submissions, the decision was made before it made any submissions at all. The rules of natural justice and procedural fairness dictate that, at a minimum, a party must be given the opportunity to be heard.[^24]

Conclusion

[30] In the circumstances of these cases, I find that the court failed to give the Crown the opportunity to make meaningful submissions on the issue of the validity of s. 737 of the Code. That is an error of law and, consequently, these matters must be referred back to the court for a proper hearing.

Madam Justice Julianne A. Parfett

Released: March 12, 2015

CITATION: R. v. Sharkey, 2015 ONSC 1657

COURT FILE NOS.: 14-11593 (Sharkey) and 14-11299 (Rutledge)

DATE: 2015/03/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Appellant

– and –

JOANASSIE SHARKEY

CHRISTINE RUTLEDGE

Respondents

REASONS FOR DECISION

Parfett J.

Released: March 12, 2015

[^1]: 2014 ONCJ 360, 121 O.R. (3d) 244 [“Michael”].

[^2]: R.S.C. 1985, c. C-46.

[^3]: Canadian Charter of Rights and Freedoms, ss. 8, 9, 10(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^4]: Shewchuk v. Ricard, 1986 174 (BC CA), 28 D.L.R. (4th) 429 at para. 28 (B.C.C.A.)

[^5]: R.v. Jaycox, 2011 BCSC 662, 94 W.C.B. (2d) 492 at para. 22 (S.C.). See also Kent Roach, Constitutional Remedies in Canada (2^nd ed.) (looseleaf) Toronto: Canada Law Book/Thompson Reuters, 2013, ¶ 6.460, p. 6‑25.

[^6]: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5 at para. 17. See also R. v. Lloyd, 2014 BCCA 224, 12 C.R. (7th) 190 [Lloyd] at paras. 31 and 37-38.

[^7]: Lloyd at para. 37.

[^8]: R.S.O. 1990, c. C.43.

[^10]: 1997 366 (SCC), [1997] 1 S.C.R. 241.

[^11]: At para. 49.

[^12]: At paras. 53-54.

[^13]: Paluska v. Cava, 2002 41746 (ON CA), 59 O.R. (3d) 469, (C.A.) [Paluska] at para. 16. See also R. v. Nome, 2010 SKCA 147, 362 Sask. R. 241 [Nome] at para. 47.

[^14]: Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission) v. Ryan Estate, 2011 NLCA 42, 308 Nfld. & P.E.I.R. 1 at para. 53, reversed on other grounds in 2013 SCC 44, [2013] 3 S.C.R. 53. See also Nome, supra note 14 at paras. 39-40 and Paluska, supra note 14 at para. 23.

[^15]: Nome, supra note 14 at para. 40.

[^16]: 2013 SKCA 143, 427 Sask. R. 261 at para. 98.

[^17]: R.v. Foisy, 2000 16959 (ON CA), 51 O.R. (3d) 161 (C.A.) at para. 7.

[^18]: R. v. Tillotson, 2011 ONSC 3390, 94 W.C.B. (2d) 847 at para. 29.

[^19]: 2014 ONCJ 437, 314 C.C.C. (3d) 452, 2014 CarswellOnt 11392 [Sharkey] at para. 32.

[^20]: At paras. 33-34.

[^21]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 2. See also R. v. Nicholson, 115 W.C.B. (2d) 318 at para. 12 (S.C.), Re Workers’ Compensation Act, R.S.P.E. 1988, Cap. W-7.1, 2000 PESCAD 28, 194 Nfld. & P.E.I.R. 181 at para. 6 and R. v. Westendorp, [1981] 6 W.W.R. 52 at paras. 8-14. (P.C.)

[^22]: R. v. Christine Rutledge, Transcript dated August 20, 2014 [Rutledge], at p. 14.

[^23]: Rutledge at p. 15.

[^24]: R. v. Gunn, 2003 ABQB 314, 335 A.R. 137 at paras. 55-56.