COURT FILE NO.: CR-21-00000088-00MO
DATE: 20211110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
A GROUP OF 721 RESPONDENTS
Respondents
Michael Perlin, for the Crown
Breana Vandebeek, Amicus Curiae
HEARD: October 27, 2021
R. F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON APPLICATION BY THE CROWN
[1] In 2018 the Supreme Court of Canada struck down the victim fine surcharge that a court must impose as part of a sentence: Criminal Code, s. 737(1); R. v. Boudreault, 2018 SCC 58.[^1] Thousands of offenders across Canada owed it at the time but had not paid it. They became subject to an unconstitutional penalty. The question that concerned this application was what to do about those offenders, and the victim fine surcharges that remained on the books.
[2] The Crown applied on behalf of 721 respondents to vary the time to pay the VFS for each offender by 99 years.[^2] This creative solution would, effectively, mean that no person who had been convicted or discharged in the Superior Court under an unconstitutional regime would be subject to an enforcement measure in their lifetime. Although the application was brought ex parte, the Court appointed Breana Vandebeek to act as amicus curiae. I am grateful for the assistance of both counsel.
[3] On October 27, 2021 I granted the application and signed the order on the grounds that it was in the interests of justice to do so. I indicated that reasons would follow. These are my reasons for granting the application.
PARLIAMENT ENACTS THE VICTIM FINE SURCHARGE - 1988
[4] In 1988 Parliament added a VFS to the Criminal Code. Offenders who are found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act must pay the VFS (the provision also applies to offenders who receive a discharge). The purpose of the VFS is to permit provincial governments to assist victims of crime. When it was enacted, the VFS consisted of 15% of any fine imposed by a sentencing court. If no fine was imposed, the VFS consisted of $50 for any summary conviction offence and $100 for any indictable offence.
[5] The provision had a measure of flexibility: pursuant to s. 737(5) of the Criminal Code a sentencing court could waive payment of the VFS where it would cause “undue hardship to the offender or the dependants of the offender would result”: Boudreault, at para. 7-9. The key parts of the section stated:
737 (1) Subject to subsection (5), 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.
(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1).
(6) When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings.
[6] Generally speaking, the Criminal Code enforcement mechanisms to collect fines are used to enforce the VFS, with some modifications. For example, offenders who do not pay can have their driver’s licence suspended. Provinces can opt into a fine-option program.
PARLIAMENT REPEALS THE DISCRETION TO WAIVE THE VICTIM FINE SURCHARGE - 2013
[7] The VFS was amended in 2013. Parliament repealed subsections (5) and (6). The repeal removed the power of a sentencing court to waive the VFS based on undue hardship. The amendments also increased the amount of the VFS. The amount was raised from 15% of any fine imposed to 30% of any fine imposed. Parliament also raised the amount per count where no fine was imposed from $50 and $100 for summary and indictable offences, respectively, to $100 and $200. The amendment came into force on October 24, 2013. For the most part the enforcement mechanisms did not change.
BOUDREAULT – 2018
[8] In Boudreault several offenders challenged the constitutionality of s. 737 of the Criminal Code. Alex Boudreault was the named party. Justice Martin, who wrote the majority decision, described Boudreault’s personal circumstances in her judgment at paras. 15 and 16:
Alex Boudreault was 21 years old at the date of sentencing. He had no high school education, having quit school at age 15. He had never held a steady job and he had had no income for almost two years. The most serious crimes for which he was sentenced were committed at a time when he was homeless, unemployed, and addicted to marijuana.
Mr. Boudreault pleaded guilty on September 23, 2013 to four summary charges of breach of probation. Four months later, he also pleaded guilty to seven counts of breaking and entering, one count of attempted breaking and entering, one count of sale of stolen goods, one count of assault with a weapon, and one count of possession of a prohibited weapon.
[9] Justice Martin described the personal circumstances of the other offenders. For the most part, their offences involved breaches of probation or bail orders, and low-level criminal activity. Most were poorly educated, had addiction or mental health problems (or both) and had been raised in difficult circumstances. Many were on social assistance. As Justice Martin put it at para. 55, offenders like these appear with “staggering regularity” in the Courts.
[10] The offenders challenged the constitutionality of the VFS provision in courts in Ontario and Quebec. The Quebec Court of Appeal rejected a challenge under s. 12 of the Charter, although Chief Justice Hesler dissented. She would have found that the provision constituted cruel and unusual punishment. The Ontario Court of Appeal rejected a challenge under both s. 12 and s. 7 of the Charter.
[11] In Boudreault the Supreme Court of Canada found that s. 12 of the Charter was clearly engaged. The VFS is clearly a punishment. The question, therefore, was whether the punishment was “so excessive as to outrage standards of decency” and “abhorrent or intolerant to society”: Boudreault at para. 45. Since the VFS was a mandatory minimum penalty (although not a typical one), Justice Martin applied the two-step test from R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773: first, what would constitute a proportionate sentence according to the principles of sentencing? And second, is the mandatory punishment grossly disproportionate when compared to a fit sentence for either the offender or the reasonable hypothetical offender?
[12] Justice Martin was satisfied that a fit sentence for all the offenders before the court (and not merely a reasonable hypothetical offender) would not include the VFS. As Justice Martin put it at para. 57: “Fit and proportionate sentences would not include a surcharge that sentencing judges rightly concluded would cause undue hardship for offenders as impecunious as these.” She then found that for some of the offenders – who, again, were not merely hypothetical – the VFS was grossly disproportionate. It created disproportionate financial consequences. Many marginalized offenders, suffering from mental health or addiction issues, are not dangerous but often victims of terrible circumstances: Boudreault at para. 68. These marginalized offenders sometimes find themselves detained in prison awaiting a hearing even where it is found that they cannot pay: Boudreault at para. 70-73. Even where an offender obtains numerous extensions of time to pay (in and of itself a dubious proposition for many offenders) the VFS amounts to an indefinite criminal sentence: Boudreault at para. 76-77.
[13] Thus, the provision was struck down as contrary to s. 12 of the Charter with immediate effect. It will be difficult to show that a mandatory minimum sentence that is grossly disproportionate under s. 12 of the Charter can be proportionate under the s. 1 analysis: R. v. Nur, at para. 11; R. v. Oakes: 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. Thus, s. 737 of the Criminal Code could not be saved by s. 1 of the Charter.
PARLIAMENT RE-ENACTS THE VFS WITH DISCRETION TO WAIVE - 2019
[14] In 2019 Parliament re-enacted s. 737 of the Criminal Code. The legislation was before Parliament when the Supreme Court decided Boudreault. The section still required offenders to pay a VFS. The section also still required offenders to pay a VFS of 30% of any fine imposed; and if no fine was imposed an amount of $100 and $200 per count for summary and indictable offences, respectively. Parliament did, however, restore the discretion of sentencing courts to waive the VFS.
THE RESPONDENTS: THE CLASS OF PERSONS SUBJECT TO AN UNCONSTITUTIONAL VFS
[15] The unconstitutional VFS was in force from October 23, 2013 until Boudreault was released on December 14, 2018. The Crown has identified a class of 721 offenders who were convicted or discharged in relation to 1,491 counts imposed under the Criminal Code during that time in the Superior Court. Those offenders (except offenders convicted or discharged in the Oshawa courthouse) were subject to an unconstitutional VFS but have not paid it.[^3] The Crown has also identified 69,000 offenders across the province who were convicted or discharged by the Ontario Court of Justice. The Crown will bring a separate application in that Court.
[16] The class of persons included in the application includes all offenders who were subject to the mandatory minimum VFS but were not sentenced to a discretionary fine. The class also includes offenders who were subject to mandatory minimum fines. Some offences in the Criminal Code, such as those related to impaired driving, have mandatory minimum fines. The Crown included those offenders although many are obviously able to pay. As Crown counsel put it in his factum, “the Crown has chosen to cast the net more broadly than required to reduce the risk of Charter breaches.”
[17] The class defined by the Crown does not include the following people:
• Offenders prosecuted under the Controlled Drugs And Substances Act by the Public Prosecution Service of Canada (referred in these reasons as the PPSC). The class does include charges that the Crown delegated to the PPSC for the purposes of prosecution.
• Offenders who committed their offences prior to October 24, 2013 but were sentenced afterwards. Those offenders would have enjoyed the benefit of the lesser punishment that existed before subsections (5) and (6) of s. 737 of the Criminal Code were repealed.
• Offenders who received a discretionary fine as a part of their sentence. Pursuant to s. 734(2) a court that imposed a fine, other than a minimum fine or a fine in lieu of forfeiture, could only do so if satisfied that the offender had the ability to pay.
• Offenders who received no fine as part of their sentence but were ordered to pay a VFS greater than the mandatory minimum amount. A sentencing court in that case would have also determined that the offender had the ability to pay.
GOVERNMENT RESPONSES
[18] The Court in Boudreault stated at para. 104 that there would be offenders who were “already subject to surcharge amounts that they cannot pay and are attached to sentences that they can no longer challenge.” The Court noted that remedies were available to individual offenders and provincial governments. Individuals could apply for relief under s. 24(1) of the Charter.[^4] Governments could proceed administratively until Parliament acted. Although Parliament did act, it did not include any transitional provisions that might have addressed at least some offenders.
[19] The government of Ontario has taken various administrative measures to cease enforcement of the VFS. The Crown also proposes the targeted legal approach taken in this application. The solution proposed by the Crown was that this Court grant an extension of time of 99 years to each of the 721 respondents to pay the VFS pursuant to s. 734.3 of the Criminal Code:
734.3 A court that makes an order under section 734.1, or a person designated either by name or by title of office by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482 or 482.1, change any term of the order except the amount of the fine, and any reference in this section and sections 734, 734.1, 734.2 and 734.6 to an order shall be read as including a reference to the order as changed under this section.
[20] Other governments have responded with different measures. The Crown filed the materials in the Parent and Saila application (see FN 4). The material included an affidavit from Victoria Stillie, a Senior Analyst in the Policy Centre for Victim Issues at the Department of Justice Canada. Ms. Stillie set out the responses of various governments across Canada.
[21] The PPSC, for example, issued a directive to the National Fine Recovery Division to cease collection and recovery measures of VFSs imposed on offenders between October 1, 2013 and December 4, 2018. The PPSC also took measures to inform offenders that they were no longer required to pay the VFS. Some provincial governments ceased enforcement measures, and informed offenders that they did not need to pay the fine.
[22] The National Parole Board is responsible for granting a record suspension or a pardon. The Board’s policy had been that an offender had to show that they had paid all fines in full before applying for a record suspension or pardon. That requirement has been relaxed for VFSs imposed after October 24, 2013.
SHOULD THE APPLICATION BE GRANTED?
[23] In Boudreault the Court grappled with the proper remedy at paras. 108-109:
The difficulty is in determining what the remedy for this ongoing violation ought to be. Only the Tinker appellants and the intervener the Criminal Lawyers’ Association addressed in their pleadings the need for a specific constitutional remedy for the individuals described above. Without the benefit of more robust submissions from the parties on this issue, it would be inappropriate to grant a remedy for a class of individuals who are not parties to this litigation.
Though unable to order a specific remedy for this class of offenders, I would note that a variety of possible remedies exist. Private parties may be able to seek relief in the courts, notably by recourse to s. 24(1) of the Charter. Government and Parliament also have options to attend to their responsibility to ensure that Charter rights are protected. The government could proceed administratively, while Parliament may act to bring a modified and Charter-compliant version of s. 737 back into the Code and to resolve the outstanding Charter concerns identified here.
[24] Mr. Perlin argues that:
• Section 734.4 gives authority to the court that imposed the fine to vary the time to pay;
• Section 734.4 also gives authority to the Crown to bring the application on behalf of the respondents since the application can be brought “on behalf of” an offender;
• There is no broad constitutional remedy available;
• There is no other adequate remedy available;
• There is no power to waive a VFS; and,
• It is in the interests of justice that the application be brought and granted, rather than rely on each individual offender to bring an application.
[25] Ms. Vandebeek, acting as amicus curiae, agreed that the remedy proposed by the Crown is appropriate. She also agreed that the Crown appropriately set out the classes of offenders who should be subject to the extension of time, and those who should not. Ms. Vandebeek pointed out, correctly in my view, that the extension of time does not really address the principle of finality in criminal law. The only real remedy is for the federal government to exercise its power of remission under s. 748.1 of the Criminal Code. The government of Ontario has taken proper steps to stay enforcement and ensure that no further Charter violations to occur, but circumstances can change. For example, a policy change at the National Parole Board could make it impossible for offenders to obtain pardons. Ms. Vandebeek argues that the court should urge the federal government to exercise its power of remission.
[26] I turn to each of the main points made by the Crown.
[27] Section 734.4 empowers the court to vary the time to pay: I agree with Mr. Perlin that the section, on its face, grants the power to a sentencing court to vary a fine. It is clear that a sentencing court is not functus in this respect after it imposes a VFS.
[28] Section 734.4 empowers the Crown to bring the application on behalf of the respondents: I also agree that s. 737.4 on its face gives authority to the Crown to bring the application on behalf of the defined class of offenders.
[29] There is no broad constitutional remedy available: The Crown relies on R. v. Kakfwi, 2019 NWTSC 22. The offender was sentenced prior to Boudreault. The offender moved to serve default time rather than pay the VFS. He was not represented at the time. The Court then brought the matter to the attention of his trial counsel, who then moved for a declaration that Mr. Kakfwi’s own VFS was null and void. The Court granted that declaration.
[30] Mr. Kakfwi’s counsel also sought a declaration that all unpaid VFSs imposed between October 24, 2013 and December 14, 2018 are contrary to s. 12 of the Charter and unenforceable. Charbonneau J. of the North West Territory Supreme Court dismissed that part of the application. In doing so she stated at paras. 29 to 31 (the following are excerpts):
It could well be that some offenders have the means to pay the VFS. For those offenders, although the VFS was imposed pursuant to a provision that has now been declared unconstitutional, it does not necessarily follow that its enforcement constitutes a breach of section 12 of the Charter. I acknowledge that practically, this will be the case for a very small numbers of the offenders sentenced in this Court, and possibly none. But the fact remains that the possibility exists.
The declaration that Mr. Kakfwi seeks would capture all offenders who are subject to an unpaid surcharge. There would be no distinction between those who have the means to pay it and those who do not. That, in my view, exceeds the scope of the pronouncement in Boudreault.
Practically speaking, Mr. Kakfwi is asking this Court to give Boudreault retroactive effect. To do so would be contrary to the general rule that declarations of invalidity only have prospective effect on non-parties and that court orders are protected from challenge by the doctrine of res judicata. Boudreault , paras 104-105. It is also something that the Supreme Court of Canada itself, seized with the issue, refrained from doing.
[31] I agree with Charbonneau J.’s reasoning. I agree that a constitutional declaration would simply be too broad and would, in effect, give Boudreault retroactive effect. As she noted, the Supreme Court of Canada declined to do that. I would add that Parliament also declined to make the amendments retrospective.
[32] There is no other adequate remedy available and no power to waive the VFS: The Crown chose not to bring an application similar to an application brought in Quebec. In Procureure Gnral du Qubec c. Asselin et. al., 2021 QCCS 1426 the Attorney General of Quebec, supported by the PPSC, brought an application in the Superior Court of Quebec to address the issue. On April 16, 2021 the Court granted an order vacating arrest warrants and balances owed as a result of the imposition of the VFS. The order applied to offenders represented by legal aid or private counsel where a VFS was imposed after October 24, 2013 for offences committed prior to July 22, 2019 where the VFS remains unpaid. In that case, Pronovost J.C.S. found that the court could grant the order by virtue of its inherent powers as a superior court of justice, relying on R. v. Caron, 2011 SCC 5, where Binnie J. stated at para. 24:
The inherent jurisdiction of the provincial superior courts, is broadly defined as "a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so": I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at p. 51. These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" (Jacob, at p. 27) to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner" (p. 28). In equally broad language Lamer C.J., citing the Jacob analysis with approval (MacMillan Bloedel Ltd. v. Simpson 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725 (S.C.C.), at paras. 29-30), referred to "those powers which are essential to the administration of justice and the maintenance of the rule of law", at para. 38.
[33] Although the matter was not fully argued before me, by implication the Crown takes the position that the remedy granted by the Superior Court of Quebec is either not available or is contrary to Boudreault.
[34] The Crown provided its factum in the Parent and Saila litigation (again, see FN 4). That was a very broad application under s. 24(1) of the Charter brought by two offenders. The offenders sought an order that all VFSs imposed between October 24, 2013 and December 14, 2018 be vacated and that all funds collected be returned. The Crown argued (among other things) that:
• The application amounts to a collateral attack on a criminal sentence by using the civil process;
• The constitutional remedy sought by the applicants was not available because declarations of constitutional invalidity only have prospective effects with regard to non-parties: Boudreault at para. 105;
• To simply vacate the VFSs would be inconsistent with Boudreault. Simply vacating an outstanding VFS might result in a series of harms, including potential committal hearings and an indefinite punishment.
[35] The application before me is somewhat different from the application in Parent and Saila. An Asselin-type application would be inconsistent with the Crown’s position in Parent and Salia, and also inconsistent with the Crown’s position that this Court has no power to waive a VFS. Such an application would also be inconsistent with the decision in Kakfwi.
[36] It seems to me that the Asselin remedy is problematic. It amounts to a retrospective waiver of VFSs. In Boudreault, the majority rejected reading in the judicial discretion to waive the VFS at paras. 100-102:
First, in 2013, Parliament clearly expressed its desire to eliminate judicial discretion to waive the surcharge. In relation to mandatory minimum sentences, this Court held that Parliament is presumed to intentionally remove any discretion to order a sentence that is less than the mandatory minimum: R. v. Ferguson, at para. 54. For this reason, constitutional exemptions from unconstitutional mandatory minimum sentences are considered a highly intrusive remedy: Ferguson, at paras. 50-51; R. v. Seaboyer 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.), at p. 628. The same logic militates against this Court reading the terms of the prior discretion back into s. 737 today.
The second reason why reading in is an inappropriate remedy in the instant case is that Parliament ought to be free to consider how best to revise the imposition as well as the enforcement of the surcharge. Section 737 is invalid by reason of all of its effects, from mandatory imposition on a charge-by-charge basis through committal hearings, threats of imprisonment, and the denial of rehabilitation. Because of this, a number of possible legislative options, that do not replicate the previous provision, are open to Parliament to bring s. 737 into compliance with s. 12.
[37] The Court rejected prospectively reading in the discretion to waive the VFS. I have some difficulty with the notion that a superior court ought to do so retrospectively, even if it has the inherent power to do so. It also strikes me that resorting to the inherent power of a superior court is unnecessary, given that there is a statutory provision that permits varying the time to pay.
[38] Ultimately, I do not have to decide whether the Superior Court of Justice of Ontario has the inherent authority to make the same type of order made in Asselin. I also do not have to decide whether there is no other adequate remedy. That is because I am satisfied that the remedy sought in this case is available to the Court and that it is in the interests of justice to grant it.
CONCLUSION
[39] I find that this Court has jurisdiction to grant the remedy sought by the Crown. I also find that it is in the interests of justice to do so.
[40] In my view, however, the real solution to this problem is for the federal government to invoke the power of remission under s. 748.1(1) of the Criminal Code and cancel all outstanding victim fine surcharges. I ask the Crown to bring this judgment to the attention of the Minister of Justice.
R. F. GOLDSTEIN J.
Released: November 10, 2021
COURT FILE NO.: CR-21-00000088-00MO
DATE: 20211110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
A GROUP OF 721 RESPONDENTS
Respondents
REASONS FOR JUDGMENT ON APPLICATION BY THE CROWN
R. F. GOLDSTEIN J.
[^1]: I refer to the victim fine surcharge as the VFS throughout these reasons.
[^2]: When I refer to the Crown in this case I am referring to Her Majesty In Right Of Ontario.
[^3]: The Oshawa courthouse keeps statistics differently from the rest of the province. The Crown will bring a separate application in that court.
[^4]: The Superior Court in Ottawa has heard such an application: Parent and Saila v. Her Majesty The Queen as represented by the Crown In Right of Canada and the Crown In Right of Ontario. As of the time of the writing of these reasons, the judgment was under reserve.