Court File and Parties

COURT FILE NO.: CR-22-15740-00MO DATE: 20220311 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – A GROUP OF 54 RESPONDENTS Respondents in absentia

Counsel: Michael Perlin, for the Crown Breana Vandebeek, Amicus Curiae

HEARD: January 21 and February 17, 2022

Reasons for Decision

J. Di Luca J.:

[1] This is an application brought by the Crown on behalf of a group of 54 respondents seeking an order extending the time to pay the victim surcharge by 99 years. If the application is granted, the instant outcome is that the 54 respondents will not have to pay the victim surcharge imposed on them within their lifetime. As a result, they will not default on payment of the victim surcharge and many, if not all, of the resultant consequences of default will be avoided.

[2] The genesis of this application is R. v. Boudreault, 2018 SCC 58, wherein the Supreme Court of Canada struck down as unconstitutional the mandatory victim surcharge that was in place at the time.

[3] As a result of the Boudreault decision, the Crown has taken steps to identify individuals who were subject to unconstitutional victim surcharges. The Crown seeks to alleviate the impact of these unconstitutional penalties by bringing this application.

[4] An application essentially identical to the one before me was argued in the Superior Court of Justice in Toronto before Goldstein J., who in a detailed and comprehensive decision canvassed the issues and ultimately granted the Crown’s request, see R. v. A Group of 721 Respondents, 2021 ONSC 7380.

[5] As a result of different electronic case tracking systems, the Crown has identified a group of 33 respondents in Oshawa who were subject to the unconstitutional victim surcharge, but were not captured in the group of respondents addressed before Goldstein J. The Crown also identified a further 21 respondents from Sault Ste. Marie and elsewhere in Ontario who were wrongly omitted from the initial application before Goldstein J.

[6] The 54 individual respondents in this application were not served with notice and the Crown requested leave to proceed with the respondents in absentia.

[7] On the first appearance before me, I appointed Ms. Vandebeek, as amicus curiae. Ms. Vandebeek had previously appeared as amicus curiae before Goldstein J., and was therefore “up to speed” on the issues and in a position to effectively and efficiently assist the court.

[8] In addition to receiving submissions on the merits of the application, I also invited counsel to make submissions on specific issues that were of concern to the court, including, inter alia, the issue of notice to the respondents, the manner in which the outcome of the application would be disseminated, and the scope of mechanisms available for civil enforcement of the victim surcharge.

[9] On February 17, 2022, I heard the balance of the application. At that time, I granted the application and signed an Order granting the respondents 99 years from the date of imposition to pay the victim surcharge. I indicated that I would provide brief reasons at a later date, and these are those reasons.

[10] I turn next to addressing the various issues raised in this application.

The Merits

[11] The issues raised in this application have already been determined by my colleague Goldstein J. While I am not bound by his determination of the issues, the principle of judicial comity suggests that I should follow his lead unless I am satisfied that he was “clearly wrong”, see R. v. Sullivan, 2020 ONCA 333, at para. 38; R. v. Scarlett, 2013 ONSC 562, at para. 43 and R. v. Abdullahi et al., 2014 ONSC 3981 at paras. 34-39.

[12] Based on my review of Goldstein J.’s reasons for decision, I see no basis upon which I can conclude that he was “clearly wrong.” To the contrary, I agree with his analysis and I adopt it here.

[13] In summary, Goldstein J. concluded as follows:

a. Section 734.4 of the Criminal Code empowers the court to vary the time to pay a victim surcharge;

b. Section 734.4 of the Criminal Code empowers the Crown to bring an application “on behalf of” the respondents;

c. Based on Boudreault, there appears to be no broad retrospective constitutional remedy available; [1]

d. There is no power in the Criminal Code or otherwise to waive a victim surcharge;

e. That the interests of justice favour the granting of the application as framed rather than relying on aggrieved individuals to bring an application; and,

f. The complete answer to the problem identified in this application would require the federal government to invoke the power of remission under section 748.1(1) of the Criminal Code and cancel all outstanding impugned victim surcharges.

[14] While I adopt Goldstein J.’s conclusions, I wish to add the following comments:

a. This application is only deciding the Crown’s request to extend the time to pay the victim surcharge;

b. This application is not deciding any individual claims for redress under either the Criminal Code or the Charter;

c. This application is not specifically deciding whether any group or class claim for redress under either the Criminal Code or the Charter can be brought in view of the Boudreault decision. While I agree with Goldstein’s J.’s finding that the effect of Boudreault appears to foreclose a retrospective remedy, this issue was not argued before me. In my view it remains open to any affected parties to squarely place that issue before the court for determination;

d. Nothing determined here should be taken to suggest that other forms of relief are not appropriate or that this is the only relief available to aggrieved parties. In short, this decision is effectively without prejudice to anyone else who may seek a different remedy to address an unconstitutionally imposed victim surcharge; and,

e. While the extension of the time to pay forecloses resort to Criminal Code enforcement mechanisms, it does not directly address all issues related to the impact of unconstitutional victim surcharges. As one example, the Parole Board of Canada initially required applicants for record suspensions (formerly pardons) to pay any outstanding victim surcharges in order to be eligible. The 99-year extension of time proposed in this application would not address this requirement. I understand that the Parole Board of Canada has now taken the position that it will not deny a record suspension based on an unpaid victim surcharge. However, that is simply a matter of policy, which remains as always subject to change. This is another factor which highlights why the power of remission should be used to correct the problem. The process of curing the impacts of unconstitutionally imposed victim surcharges should not be left to piecemeal policy efforts that are subject to change at some later point in time.

Notice to the Respondents

[15] In the usual course, criminal cases proceed on notice and in the presence of the accused, see, for example, section 650(1) of the Criminal Code. However, not all criminal proceedings require notice.

[16] In this case, the Crown argues that it is not reasonably feasible or necessary to give all the respondents personal notice of these proceedings. For the following reasons, I agree:

a. While the number of respondents in this application is relatively small, the application before Goldstein J. involved over 721 applicants and I understand that an application is being prepared for the Ontario Court of Justice that will involve approximately 69,000 respondents. Providing effective notice to such a large number of respondents would impose an immense and unwarranted burden on the system. It would also result in a court proceeding that would likely be unmanageable and/or unnecessarily time consuming given the nature of the issue at stake.

b. The impugned victim surcharges were imposed between October of 2013 and December of 2018. Given the passage of time, the address or other contact information maintained by the court system in relation to these respondents is likely out of date. Mail service at a last known address will likely not result in actual notice for many respondents. I note that many of those persons who were subject to the victim surcharge would likely have come from disadvantaged and/or marginalized backgrounds. Indeed, the target group of respondents, as framed by the Crown, excludes persons who would have received a victim surcharge in circumstances where the court would have been satisfied of their ability to pay a fine or a surcharge in excess of the minimum.

c. Notice by mail to a dated last known address may also result in the unwarranted dissemination of the individual respondent’s personal criminal history as there is a real chance that the mail may end up with persons other than the intended individual respondents.

d. Requiring personal service through a process server or police service is unwarranted and likely unwelcome, with potential consequences and costs readily extending beyond the point of utility.

e. The relief sought in the application is unobjectionable. To be blunt, it is good news. While I will return to this topic in a moment, I am satisfied that the presence of the respondents on the application is not essential as there is no reasonable basis upon which they would object to the relief sought. My view on this issue is fortified by the position taken by amicus curiae both before me and before Goldstein J. To be clear, while some respondents might want to seek other relief including a personal constitutional remedy, they are not likely to be opposed to a lifetime extension of the time within which to pay the victim surcharge. Indeed, any such respondent remains free to seek whatever remedy they so desire, in addition to the extension of time granted through these applications.

Dissemination of Outcome

[17] During colloquy with counsel, I raised the issue of whether a process for disseminating the outcome of the application had been contemplated. While Goldstein J.’s reasons were available on publicly accessible electronic case law databases and it was anticipated that my reasons would be as well, I was concerned that many members of the target group of respondents would not become aware of the outcome of these applications unless they had the wherewithal to either read caselaw online or inquire on the status of their victim surcharge either in person, by phone or otherwise through a courthouse. Without a mechanism for effective dissemination, I was concerned that many respondents would simply remain under the incorrect impression that they had to comply with the victim surcharge.

[18] As a result of my inquiry, the Crown undertook consultations in an effort to determine an appropriate mechanism for the dissemination of the court’s orders and reasons. This effort resulted in the creation of a list of approximately 140 NGOs, Bail Verification and Supervision Programs, Bail Bed Program Providers, Direct Accountability Program Providers, Political/Territorial Organizations and MAG-IJD (Indigenous Justice Division) funded communities and organizations. This list includes organizations such as the various branches of The John Howard Society, the Salvation Army and The Elizabeth Fry Society, various Indigenous and First Nations communities and organizations, various community service and counselling providers, and various legal groups including the Criminal Lawyers’ Association, Aboriginal Legal Services, Legal Aid Ontario, Canadian Civil Liberties Association, Colour of Poverty – Colour of Change and the Income Security Advocacy Centre.

[19] The Crown has provided an undertaking that it will disseminate the orders and reasons for decision relating to the various applications brought in relation to the victim surcharge to all the associations and groups on the list provided. The communication will include the following preamble:

The Ontario Superior Court of Justice and Ontario Court of Justice have released orders extending the time to pay for some unpaid victim surcharges that were imposed under the version of s. 737 of the Criminal Code that was in force between October 24, 2013, and December 14, 2018, and was struck down by the Supreme Court of Canada in R. v. Boudreault, 2018 SCC 58.

The Ontario Superior of Justice’s and Ontario Court of Justice’s reasons for judgment are attached for you to distribute as you see fit.

Anyone who wishes to determine whether an extension of time to pay their unpaid victim surcharge has been granted can find out by contacting court staff at any criminal courthouse location in Ontario.

[20] It is reasonably anticipated that the listed organizations will assist the dissemination process by making this information available to their various members, attendees and constituents. Given the breadth of the organizations covered, it is also reasonably anticipated that the scope of dissemination will extend well beyond the audience typically reached by electronic case law databases.

[21] In my view, this process for disseminating the outcome of this (and the related) application(s) is both commendable and appropriate. I am satisfied that this process will ensure as far as is reasonably possible that the individual respondents will learn of the outcome.

[22] I also note that the court’s electronic records will be updated to reflect the extended time to pay and, as a result, should any of the individual respondents make an inquiry at or through a courthouse, they will immediately learn that the time to pay the victim surcharge in their specific case has been extended to 99 years from the date of imposition.

Civil Enforcement of Victim Surcharge

[23] One final issue I raised with counsel was the enforceability of the victim surcharge through the Criminal Code civil enforcement mechanisms. My concern on this issue stemmed from the admittedly remote possibility that a victim surcharge could be enforced against the estate of a respondent once the 99-year time period expires.

[24] On this issue, the Crown clarified that section 737(7) of the Code, which addresses enforcement mechanisms for the victim surcharge, specifically does not incorporate the civil enforcement mechanisms found in section 734.6 of the Code. As such, a defaulted victim surcharge cannot be enforced as a civil debt. In any event, the Crown also advised that it was Ministry policy to cease enforcement of fines once the person subject to the fine dies.

Conclusion

[25] I am satisfied that I have the jurisdiction to make the order requested and further satisfied that it is in the interests of justice to do so. The time to pay the victim surcharge for each respondent shall be extended to 99 years from the date of imposition.

[26] I end by re-iterating Goldstein J.’s concluding remark that the real solution to this problem is the invocation of the power of remission under s. 748.1(1) of the Code, and I join Goldstein J. in urging the federal government to do so.

J. Di Luca J.

Released: March 11, 2022

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – A GROUP OF 54 RESPONDENTS Respondents in absentia REASONS FOR DECISION The Honourable Justice J. Di Luca

Released: March 11, 2022

[1] See Parent v. Attorney General of Canada et al., 2022 ONSC 1374, a recent decision involving a civil application seeking both individual and broad declaratory relief in relation to unconstitutional victim surcharges, wherein James J. declined to grant a broad declaration but vacated the victim surcharge imposed on the individual applicant.