Yves André Jubinville

The appellants challenged the constitutionality of the mandatory victim surcharge imposed under section 737 of the Criminal Code, arguing it violates sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

The appellants were impoverished offenders with mental and physical disabilities, unemployment, and substance abuse issues.

The trial judges had refused to impose the surcharge, finding it unconstitutional.

The Crown appealed and the Superior Court judges overturned these decisions.

The Court of Appeal upheld the constitutionality of the mandatory victim surcharge, finding that while it engages the appellants' liberty interests, it does not violate section 7 because impoverished offenders cannot be imprisoned for non-payment (inability to pay is a reasonable excuse), extensions of time to pay are available, and the deprivation is not grossly disproportionate to the important objectives of the surcharge regime.

The court also found the surcharge does not violate section 12 of the Charter as it is not cruel and unusual treatment, being disproportionate but not grossly disproportionate.

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.