Timothy Searle Carrington Radcliffe

The Crown appealed a decision of the Ontario Court of Justice that declared the mandatory victim surcharge under s. 737(1) of the Criminal Code unconstitutional as cruel and unusual punishment under s. 12 of the Charter.

The accused, who pleaded guilty to multiple offences and was indigent with mental health and addiction issues, argued that the mandatory surcharge imposed a crushing financial burden.

The Superior Court agreed that the surcharge constitutes punishment for Charter purposes but held that the evidentiary record was insufficient to establish that the surcharge was grossly disproportionate.

The court emphasized the high threshold for s. 12 violations and the availability of statutory mechanisms such as extensions of time to pay.

The appeal was allowed and the surcharge was ordered imposed.

The applicant challenged the constitutionality of the mandatory victim surcharge (SAC) imposed under section 737 of the Criminal Code, arguing it violated his rights under sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms.

The court found that the SAC constitutes a punishment rather than an ancillary order.

Applying the test for cruel and unusual punishment under section 12, the court determined that imposing a $700 surcharge on an impoverished, mentally ill, and substance-dependent offender with a monthly income of approximately $136 would be grossly disproportionate and incompatible with human dignity.

The court declared section 737(1) of the Criminal Code to be of no force or effect under section 52 of the Charter.