Court File and Parties

Court File No.: CV-19-81585 Date: March 1, 2022

Ontario Superior Court of Justice

Between:

SERGE PARENT and TOMMY SAILA Applicants

J. Michael Spratt, Counsel for the Applicants

- and -

HER MAJESTY THE QUEEN AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA and THE ATTORNEY GENERAL OF ONTARIO Respondents

Lorne Ptack and Sarah Jiwan, Counsel for the Attorney General of Canada Padraic Ryan and Savitri Gordian, Counsel for the Attorney General of Ontario

Heard: May 18, 2021

Reasons for Decision

JAMES, J.

[1] The applicants, Serge Parent and Tommy Saila, launched this application for an order directing restitution and the return of all victim fine surcharges that have been paid and for an order vacating the requirement to pay any as yet unpaid victim surcharges.

[2] The victim fine surcharge was enacted in 2013 to require an offender who is convicted or discharged under section 730 of an offence under the Criminal Code of Canada, the Controlled Drugs and Substances Act or the Cannabis Act to pay a victim surcharge for each offence, in addition to any other punishment imposed on the offender. Typically, the surcharge was $100 in the case of an offence punishable by summary conviction and $200 in the case of an offence punishable by indictment.

[3] The applicant Tommy Saila is deceased and no order has been obtained for his personal representative or estate to continue the application on his behalf. This means that for all practical purposes, Mr. Parent is the only applicant.

[4] The applicant has endured difficult personal circumstances for many years. He has a lengthy criminal record and accumulated approximately $1800 in victim fine surcharges between 2013 and 2018. The applicant was and remains unable to pay the fines. He is homeless, unemployed and suffering from addictions. There is no reasonable prospect that he will ever be able to pay the accumulated fines.

[5] In R. v. Boudreault, 2018 SCC 58 the Supreme Court of Canada determined that surcharge constituted cruel and unusual punishment and contravened section 12 of the Charter of Rights and Freedoms because of its potential to result in a grossly disproportionate sentence and because it disregarded proportionality in sentencing. The Supreme Court of Canada declared the provision to be of no force and effect.

[6] Persons affected by the surcharge and its suspension include those who have paid the surcharge, those who have not paid the surcharge, those who still have rights of appeal following imposition of the surcharge and those whose appeal rights have expired.

[7] In the absence of “robust submissions” on the issue, the Court decided it would be inappropriate to grant a remedy to offenders not involved in the case but specifically referred to the possibility of recourse to section 24(1) of the Charter.

[8] The applicant in this case bases his request on s. 24(1) of the Charter, which permits any person whose rights have been infringed or denied to apply to a court of competent jurisdiction to obtain such remedy as the court considers just and appropriate in the circumstances.

Position of the Applicant

[9] The applicant in this case is approaching old age. His life has been defined by addiction, homelessness and mental health issues. He is disconnected from his family. He lives on social assistance. He is unlikely to ever be able to pay the accumulated surcharges.

[10] The surcharge has been determined to be cruel and unusual punishment.

[11] The applicant and similar offenders suffered destructive consequences of the surcharge. These consequences include disproportionate financial consequences, the threat of imprisonment or detention, provincial collection efforts and de facto indeterminant sentences. They face indefinite criminal sanction for offenders who will never be able to pay. They face repeated appearances before a court to explain their inability to pay.

[12] Provincial courts across Canada have vacated the surcharges or refused to enforce them.

[13] Requiring all offenders to bring their own application would neither be fair, reasonable nor cost efficient.

[14] The exercise of discretionary measures to mitigate harm is not a cure for unconstitutionality. Well intentioned half measures do not cure all the harms that are associated with the surcharge. For example, an extension of time to pay the surcharge would still leave the offender ineligible to apply for a pardon.

[15] Where the surcharge has been paid, the state should not be permitted to retain funds that were collected under unconstitutional legislation. To permit retention would be condoning a breach of the rule of law. All offenders who paid surcharges during the two years preceding the filing of this application should be able to recover them.

Position of the Respondent Attorney General of Ontario

[16] The applicant is seeking an order he has no standing to apply for, vacating all unpaid victim fine surcharges imposed in Ontario and restitution for all surcharges already paid.

[17] Section 24(1) of the Charter is limited to personal remedies.

[18] In September, 2019 the Attorney General of Ontario directed that the collection of the surcharge cease immediately.

[19] Considering the measures taken by provincial and federal governments to address Boudreault, there is no evidence that the applicant’s rights are infringed.

Position of the Respondent Attorney General of Canada

[20] One month after the Boudreault decision was released, the Public Prosecution Service of Canada (“PPSC”) instructed federal prosecutors and other staff to cease all recovery measures designed to collect outstanding federal victim surcharges ordered between October 1, 2013 and December, 14, 2018.

[21] The PPSC also took proactive measures to inform offenders to whom the declaration of unconstitutionality applied that they were no longer expected to pay the surcharge.

[22] The Parole Board of Canada took steps to ensure that any surcharge owed would not be considered in a decision to deny a record suspension or pardon.

[23] The applicant bears the burden of proving on a balance of probabilities that his Charter rights are currently infringed. The evidence demonstrates that the applicant has not met this burden.

Discussion and Analysis

[24] The applicant has applied for relief pursuant to s. 24(1) of the Charter. Section 24(1) is focused on personal remedies. The applicant has not provided any authority for the proposition that relief for an entire class of offenders who are not parties is available or appropriate under the application procedure set out in rule 14.05(3)(g.1) of the Rules of Civil Procedure. In holding that the victim fine surcharge violated the Charter, the Court in Boudreault specifically declined to grant a remedy for a class of individuals who were not parties involved in that case (para. 108).

[25] On the issue of prosecutorial discretion as a means of addressing Charter violations, the applicant makes the point that “well-intentioned half measures” do not cure all the harms associated with the surcharge relying on R. v. Nur, 2015 SCC 15 at paras. 85-89 and uses ineligibility for a pardon when the surcharge remains unpaid as an example. Two points can be made here: ineligibility for a pardon is fully addressed by the Parole Board’s removal of an unpaid surcharge as an impediment to obtaining a record suspension or pardon. The second point is that Nur is directed at the question of whether the exercise prosecutorial discretion can be a factor in determining whether a particular provision violates the Charter. Section 24(1) requires a judicial determination of an appropriate and just remedy for a Charter infringement. It seems to me that the exercise of judicial discretion (as opposed to prosecutorial discretion) can include an assessment of the steps taken by state actors to ameliorate the harms associated with laws that are found to be unconstitutional. In the case of the victim fine surcharge, Ontario and other provinces, along with the federal government, have taken meaningful steps towards harm reduction for those offenders who have been disproportionately affected by the imposition of the surcharge. Such steps may not cure a Charter violation but can be considered in a s. 24(1) assessment.

[26] In R. v. Thomas the Court was asked to consider a request for an extension of time to seek leave to appeal to the Supreme Court of Canada. The applicant had been convicted of second degree murder in 1984. The trial judge had instructed the jury on the operation of ss.21(2) and what was then s. 213 (a) of the Criminal Code. While his appeal of this conviction was pending, the appeal in R. v. Vaillancourt, [1987] 2 S.C.R. was argued and reserved in the Supreme Court of Canada. The applicant’s appeal was heard and dismissed by the British Columbia Court of Appeal in January, 1987. No constitutional issue was raised in the appeal which was limited to a complaint with respect to expert evidence.

[27] The Vaillancourt case was argued on December 10, 1986 and the decision released December 3, 1987, striking down then s. 213 (d) and leaving open the question of whether subparas. (a) to (c) were valid.

[28] In the Thomas case the applicant’s notice of application for an extension of time was filed nearly three years beyond the prescribed time. The Court referred to the decision in R. v. Wigman, [1987] 1 S.C.R. 246 at p. 257 for the appropriate test that applies to an appellant who seeks to raise the subsequent invalidity of the law under which he was convicted:

The appropriate test is whether or not the accused is still in the judicial system. As expressed in the Crown’s factum, this test affords a means of striking a balance between the “wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process”.

[29] The Court in Boudreault acknowledged the existence of a narrow exception to the Thomas rule for those offenders who are no longer in the system but for whom res judicata ought not operate as a bar to an application for relief. A Charter-protected interest can give rise to a successful application for a Charter remedy, even where the violation began with a valid order that is legally unassailable (para. 107).

[30] I find that that the applicant is a member of the group of offenders who were disproportionately affected by the victim fine surcharge and for whom the Supreme Court of Canada determined that the surcharge constituted cruel and unusual punishment.

[31] Court at all levels have shown a willingness to grant relief from the surcharges since the release of the Boudreault decision by the Supreme Court of Canada.

[32] In my view it would be appropriate and just to grant the applicant relief even though none of the cases against him which resulted in the imposition of a surcharge is still in the system.

[33] This leaves the question of the applicability of the Limitations Act, 2002, S.O. 2002, c. 24. In Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] S.C.J. No. 7, the Supreme Court of Canada determined that the expiration of a statutory limitation period is a bar to a s. 24(1) claim. The calculation of the applicable limitation period commences with the date of the release of the Boudreault case by the Supreme Court of Canada on December 14, 2018. The notice of application was issued on October 2, 2019 and amended on September 20, 2020. Although some of the surcharges imposed on the applicant date back to 2014, the applicant’s entitlement to seek relief under s. 24(1) has not proscribed.

Disposition

[34] All victim fine surcharges imposed upon the applicant pursuant to s. 737 of the Criminal Code between 2013 and 2018 are hereby vacated.

[35] The balance of the relief sought in the application is dismissed.

[36] If the parties are unable to agree on the issue of costs, costs submissions may be made in writing within 45 days on a schedule agreed to by counsel.

Mr. Justice Martin James Released: March 1, 2022