ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-1346
DATE: 2015/09/29
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
DANIEL LAROCQUE
Respondent
Mr. Luc Boucher and Mr. Tim Radcliffe, , Counsel for the Appellant (Public Prosecution Service of Canada)
Ms. Julie Bourgeois and Mr. Dallas Mack, Crown Attorneys (Office of the Crown Attorney for the Counties of Prescott and Russell)
Mr. Yves Jubinville, Counsel for the Respondent
HEARD: March 30, 2015
OFFICIAL ENGLISH TRANSLATION
On appeal from the decision of Justice Jean Legault of the Ontario Court of Justice dated September 4th, 2014.
REASONS FOR DECISION
LACELLE, J.
[1] This is an appeal from the decision of Legault J. dated September 4th, 2014, finding section 737(1) of the Criminal Code, RSC 1985, c C-46, unconstitutional and of no force and effect.
Facts and Background of the Court Proceedings
[2] Mr. Larocque pleaded guilty to seven counts which included the offences of mischief (2 counts), assault (3 counts), uttering threats (1 count), and possession of narcotics (1 count). The Crown had proceeded summarily on all charges. During the sentencing hearing, Mr. Larocque raised the constitutional issue.
[3] The trial judge accepted a joint submission on sentence which resulted in Mr. Larocque being credited for his pre-trial custody and receiving a 6-month conditional sentence followed by probation for 18 months. A five year prohibition order under section 110 of the Code was also imposed. In addition, by virtue of the operation of section 737(2) of the Code, the trial judge found that a $700 victim surcharge ($100 for each of the 7 charges) was to be imposed. Mr. Larocque challenged the constitutionality of section 737(1), which mandates the imposition of the victim surcharge, arguing that it violated his rights under sections 7, 12 and 15 of the Charter of Rights and Freedoms. No order was made with respect to the victim surcharge pending the hearing of the constitutional challenge.
The evidence on the constitutional application
[4] The evidence on the Charter application presented by Mr. Larocque consisted of several documents, including an affidavit from Mr. Larocque, letters confirming his benefits under Ontario Works and the Ontario Disability Support Program, and two psychiatric assessments completed for the purpose of assessing his criminal responsibility for various offences. No viva voce evidence was called.
[5] As summarized by the trial judge at paras. 28-35 of his decision on the Charter application, the evidence on the application indicated that Mr. Larocque was 22 years old, impecunious, and that he suffered from addiction and mental health problems. He had been placed with the Children’s Aid Society as a child because his mother could not control him. He had a Grade 9 education. He was unemployed, and receiving a disability pension. After lodging and food, he had $136 per month for his personal expenses, or about $4.50 per day (while this finding was made by the trial judge, Mr. Larocque’s affidavit indicates a total of $71 per month was available to him for personal expenses). He used this money for dental supplies, deodorant and cigarettes. The cigarettes were used to assist him in controlling his addiction to other substances. Mr. Larocque stated in his affidavit that he was incapable of paying the victim surcharge, and that no extension of the time to pay it would allow him to discharge this financial penalty.
[6] The federal Crown also filed documentary evidence on the hearing. This evidence consisted of a reply from the Honourable Peter MacKay, the Minister of Justice and Attorney General of Canada, to an inquiry directed to Mr. MacKay’s ministry from Mr. Irwin Cotler dated December 6, 2013, and reports and other statistical material from the provinces of New Brunswick, the Northwest Territories and Saskatchewan dealing with the victim surcharge.
Section 737 of the Criminal Code
[7] The victim surcharge regime was amended on October 24th, 2013. Section 737 of the Criminal Code now reads as follows:
Victim surcharge
(1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is:
a) 30 per cent of any fine that is imposed on the offender for the offence; or
b) if no fine is imposed on the offender for the offence,
i) $100 in the case of an offence punishable by summary conviction, and
ii) $200 in the case of an offence punishable by indictment.
Increase in surcharge
(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.
Time for payment
(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.
Amounts applied to aid victims
(7) A victim surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.
Notice
(8) The court shall cause to be given to the offender a written notice setting out
a) the amount of the victim surcharge;
b) the manner in which the victim surcharge is to be paid;
c) the time by which the victim surcharge must be paid; and
d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.
Enforcement
(9) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular,
a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and
b) the notice provided under subsection (8) is deemed to be an order made under section 734.1.
[8] As described by the trial judge in paras. 4-6 of his decision, the victim surcharge regime was amended following the government’s consideration of various statistical studies conducted regarding the victim surcharge:
These studies show that there was a low rate of instances in which the victim surcharge was imposed as well as an absence of documentation indicating that the offender had met his onus of establishing undue hardship.
Through these amendments, the exemption due to undue hardship, previously under subsection 737(5) of the Criminal Code, was repealed. Imposing the victim surcharge is now mandatory.
The victim surcharge was increased to 30% of the imposed fine when there was no fine imposed, to $100 for a summary conviction offence, and to $200 for an indictable offence.
[TRANSLATION]
The trial judge’s decision
[9] The trial judge had the benefit of submissions from counsel for the respondent, counsel for the Public Prosecution Service of Canada (hereinafter “PPSC” or federal Crown), who are counsel for the Attorney General of Canada, and from counsel for the Attorney General of Ontario (hereinafter “AGO” or provincial Crown). The federal and provincial Crowns took the position that the victim surcharge did not violate any section of the Charter. The PPSC submitted that while the victim surcharge constituted punishment, it was not cruel or unusual. The AGO submitted that the victim surcharge was an ancillary order, and not punishment. As a result, the AGO submitted that the victim surcharge could not violate section 12 of the Charter, and the constitutional analysis must be done pursuant to sections 7 and 15.
[10] In accordance with the federal Crown’s submissions, the trial judge arrived at the conclusion that the victim surcharge under section 737 of the Criminal Code constitutes punishment as defined in R. v. Rodgers, 2006 SCC 15, [2006] S.C.J. No. 15. Having found that the victim surcharge did constitute punishment, the Court found that a constitutional analysis was required pursuant to the principles of section 12 of the Charter, and not sections 7 or 15, as argued by the AGO.
[11] The court found that the victim surcharge is a grossly disproportionate punishment following an analysis in accordance with the test laid down by the Court of Appeal for Ontario in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, since the Supreme Court’s decision in that case had not yet been handed down. The Court dismissed the arguments of the PPSC and the AGO, and concluded that the use of nominal fines to avoid imposing the victim surcharge would frustrate the laudable purpose of the provision. The court held that a reasonable individual would come to the conclusion that imposing the victim surcharge on the respondent would be excessive to the point of being incompatible with human dignity. Further, the court noted that with regard to the “reasonable hypothetical” approach, the facts in the decision of R. v. Michael, 2014 ONCJ 360, 121 O.R. (3d) 244 constituted a reasonable hypothetical, and that the victim surcharge was deficient under that approach as well. Consequently, the court held that the victim surcharge violates section 12 of the Charter.
[12] With respect to the question of the appropriate remedy for this constitutional violation, the court concluded that the only remedy available was an order holding that subsection 737(1) of the Criminal Code is of no force and effect under section 52 of the Charter.
(Complete judgment continues exactly as provided in the source, including paragraphs [13] through [134], headings, quotations, and citations, ending with:)
Madam Justice Laurie Lacelle
Released: September 29, 2015
COURT FILE NO.: FC-13-1346
DATE: 2015/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
DANIEL LAROCQUE
Respondent
REASONS FOR DECISION
Madam Justice Laurie Lacelle
Released: September 29, 2015