Her Majesty the Queen v. Tinker et al.
Her Majesty the Queen v. Eckstein
Sa Majesté La Reine v. Larocque
[Indexed as: R. v. Tinker]
2017 ONCA 552
Court of Appeal for Ontario, Rouleau, van Rensburg and Pardu JJ.A.
June 30, 2017
Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Victim surcharge — Victim surcharge in s. 737 of Code not grossly disproportionate and not violating s. 12 of Charter — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 737.
Charter of Rights and Freedoms — Fundamental justice — Mandatory victim surcharge — Victim surcharge in s. 737 of Code not violating s. 7 of Charter — Surcharge regime engaging offenders’ liberty interest — Surcharge not engaging offenders’ security of the person as does not constitute state-imposed psychological stress of nature that would interfere with profoundly intimate and personal choices of individual of fundamental importance nor is stigma of large unpaid fine sufficient to interfere with psychological integrity — Section 737 not overly broad or grossly disproportionate — Deprivation of liberty according with principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 737.
The appellants applied for leave to appeal and appealed decisions which upheld the constitutionality of the mandatory victim surcharge in s. 737 of the Criminal Code.
Held, leave to appeal should be granted; the appeals should be dismissed.
Leave to appeal should be granted on the issues of whether the mandatory victim surcharge violates s. 7 and/or s. 12 of the Canadian Charter of Rights and Freedoms, but not with respect to whether there is a violation of s. 15 of the Charter. The s. 15 issue was raised before the trial judge by a group of the appellants, but the trial judge did not find it necessary to address it and it was not before the summary conviction appeal judge.
There are several features of the mandatory victim regime that are relevant to its constitutionality. (1) If an offender brings an application to extend the time to pay based on inability to pay the surcharge, the court must give the offender reasonable time to pay. (2) An offender is not in default on a surcharge if an extension is granted within the time permitted for payment, and successive extensions can be sought if the offender still lacks the means to pay the surcharge. No civil enforcement mechanism such as garnishment or seizure of assets is available to enforce collection of the surcharge. An impoverished offender who cannot pay the surcharge within the time provided cannot be imprisoned for failure to pay.
The appellants’ liberty interest was engaged by the mandatory surcharge because of the possibility of being compelled to appear at a committal hearing under s. 734.7 of the Code if they defaulted. The mandatory surcharge did not deprive the appellants of security of the person as it did not cause them serious state-imposed psychological stress. For an incursion into psychological integrity to amount to a deprivation of security of the person, it must interfere with the personal autonomy, dignity or privacy of the individual in an intimate and profound way. While some of the appellants were impoverished and marginalized, the stress of being subject to long periods of indebtedness did not disturb their psychological integrity to the extent needed to reach the high threshold for engaging s. 7 of the Charter. Moreover, the stigma of having a large unpaid fine is not enough to interfere with the appellants’ psychological integrity.
Section 737 is not overbroad or grossly disproportionate. The purposes of the mandatory victim surcharge regime are to raise funds for public services devoted to assisting victims of crime, and to hold offenders accountable to victims and to the community by requiring them to make a contribution to those funds. The deprivation of the appellants’ liberty in the form of being required to appear at a committal hearing could not be said to bear no rational connection to those purposes. Comparing the severity of the deprivation of liberty created by s. 727 to the importance of the surcharge provisions, the deprivation could not be said to be grossly disproportionate. The deprivation of the appellants’ liberty accorded with the principles of fundamental justice.
Assuming for the purposes of this appeal that the imposition of the victim surcharge and the measures available to enforce payment amount to “treatment” for the purposes of s. 12 of the Charter, the mandatory victim surcharge is not grossly disproportionate to what would be a proportionate sentence for the appellants and does not violate s. 12 of the Charter.
Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, 244 C.R.R. (2d) 209, 310 B.C.A.C. 1, 421 N.R. 1, 2011EXP-2938, J.E. 2011-1649, EYB 2011-196343, 336 D.L.R. (4th) 385, 272 C.C.C. (3d) 428, 86 C.R. (6th) 223, 22 B.C.L.R. (5th) 213, [2011] 12 W.W.R. 43, 205 A.C.W.S. (3d) 673, 96 W.C.B. (2d) 322, distd
Other cases referred to
Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, 240 D.L.R. (4th) 81, 322 N.R. 205, [2005] 2 W.W.R. 605, 199 B.C.A.C. 45, 33 B.C.L.R. (4th) 195, 184 C.C.C. (3d) 449, 21 C.R. (6th) 82, 121 C.R.R. (2d) 1, 61 W.C.B. (2d) 217; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, J.E. 2000-1872, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 23 Admin. L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] CLLC ¶230-040, 77 C.R.R. (2d) 189, 38 C.H.R.R. D/153, 99 A.C.W.S. (3d) 1024; Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, 312 O.A.C. 53, 2014EXP-30, J.E. 2014-21, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, 17 C.R. (7th) 1, 327 C.R.R. (2d) 334, 66 B.C.L.R. (5th) 215, [2015] 3 W.W.R. 425, 320 C.C.C. (3d) 1, 366 B.C.A.C. 1, 468 N.R. 1, 384 D.L.R. (4th) 14, 2015EXP-471, J.E. 2015-245, EYB 2015-247729, 120 W.C.B. (2d) 561, 252 A.C.W.S. (3d) 74; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35, 254 D.L.R. (4th) 577, 335 N.R. 25, J.E. 2005-1144, 130 C.R.R. (2d) 99, 53 C.H.R.R. D/1, EYB 2005-91328, 139 A.C.W.S. (3d) 1080; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 177 D.L.R. (4th) 124, 244 N.R. 276, J.E. 99-1756, 216 N.B.R. (2d) 25, 26 C.R. (5th) 203, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 552 A.P.R. 25, 90 A.C.W.S. (3d) 698; R. c. Boudreault, [2016] J.Q. No. 16795, 2016 QCCA 1907, 2016EXP-3879, J.E. 2016-2139, 343 C.C.C. (3d) 131, 368 C.R.R. (2d) 80, EYB 2016-273353; R. c. Cloud, [2016] J.Q. no 2819, 2016 QCCA 567, 2016EXP-1221, J.E. 2016-664, EYB 2016-264125, 28 C.R. (7th) 310, 340 C.C.C. (3d) 547, 129 W.C.B. (2d) 627; R. c. Malouin, [2015] J.Q. no 15737, 2015 QCCQ 14118, 2016EXP-868, J.E. 2016-455; R. c. Zachary, [1996] J.Q. no 2970, [1996] R.J.Q. 2484, J.E. 96-1977, 3 C.R. (5th) 96, 32 W.C.B. (2d) 270, EYB 1996-65497 (C.A.); R. v. Appulonappa, [2015] 3 S.C.R. 754, [2015] S.C.J. No. 59, 2015 SCC 59, 35 Imm. L.R. (4th) 171, 345 C.R.R. (2d) 74, 390 D.L.R. (4th) 425, 478 N.R. 3, 24 C.R. (7th) 385, 379 B.C.A.C. 3, 332 C.C.C. (3d) 1, 2015EXP-3369, J.E. 2015-1855, EYB 2015-259070, 128 W.C.B. (2d) 236; R. v. Barinecutt, [2015] B.C.J. No. 1376, 2015 BCPC 189, 337 C.R.R. (2d) 1; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, 55 D.L.R. (4th) 481, 88 N.R. 205, [1989] 1 W.W.R. 97, J.E. 89-13, 71 Sask. R. 1, 45 C.C.C. (3d) 57, 66 C.R. (3d) 97, 36 C.R.R. 90, 8 W.C.B. (2d) 247; R. v. Bourque, [2005] O.J. No. 591, 194 O.A.C. 280, 193 C.C.C. (3d) 485, 63 W.C.B. (2d) 508 (C.A.); R. v. Crowell, [1992] N.S.J. No. 380, 115 N.S.R. (2d) 355, 76 C.C.C. (3d) 413, 16 C.R. (4th) 249, 17 W.C.B. (2d) 420 (C.A.); R. v. Desjardins (1996), 182 N.B.R. (3d) 321 (C.A.); R. v. Dyck (2008), 90 O.R. (3d) 409, [2008] O.J. No. 1567, 2008 ONCA 309, 236 O.A.C. 26, 57 C.R. (6th) 275, 171 C.R.R. (2d) 187, 232 C.C.C. (3d) 450, 77 W.C.B. (2d) 802; R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, EYB 2008-130228, [2008] 5 W.W.R. 387, J.E. 2008-514, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303; R. v. Flaro, [2014] O.J. No. 94, 2014 ONCJ 2, 7 C.R. (7th) 151, 111 W.C.B. (2d) 441; R. v. Goltz, [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, 131 N.R. 1, J.E. 91-1764, 5 B.C.A.C. 161, 61 B.C.L.R. (2d) 145, 67 C.C.C. (3d) 481, 8 C.R. (4th) 82, 7 C.R.R. (2d) 1, 31 M.V.R. (2d) 137, 14 W.C.B. (2d) 206; R. v. Im, [2009] O.J. No. 373, 2009 ONCA 101, 242 C.C.C. (3d) 77, 64 C.R. (6th) 157; R. v. J. (K.R.), [2016] 1 S.C.R. 906, [2016] S.C.J. No. 31, 2016 SCC 31, 30 C.R. (7th) 1, 337 C.C.C. (3d) 285, 400 D.L.R. (4th) 398, 486 N.R. 1, 390 B.C.A.C. 1, 358 C.R.R. (2d) 204, 2016EXP-2359, J.E. 2016-1303, EYB 2016-268160, 130 W.C.B. (2d) 668; R. v. Javier, [2014] O.J. No. 3725, 2014 ONCJ 361, 318 C.R.R. (2d) 1, 115 W.C.B. (2d) 288; R. v. Lavigne, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10, 2006 SCC 10, 264 D.L.R. (4th) 385, 346 N.R. 160, J.E. 2006-727, 206 C.C.C. (3d) 449, 36 C.R. (6th) 55, EYB 2006-103137, 68 W.C.B. (2d) 792; R. v. Lloyd, [2016] 1 S.C.R. 130, [2016] S.C.J. No. 13, 2016 SCC 13, 27 C.R. (7th) 205, 334 C.C.C. (3d) 20, 354 C.R.R. (2d) 327, 396 D.L.R. (4th) 595, 482 N.R. 35, 385 B.C.A.C. 1, 2016EXP-1224, J.E. 2016-666, EYB 2016-264530, 129 W.C.B. (2d) 178; R. v. MacFarlane, [1997] P.E.I.J. No. 116, 157 Nfld. & P.E.I.R. 208, 121 C.C.C. (3d) 211, 99 G.T.C. 7097, 37 W.C.B. (2d) 37 (C.A.); R. v. Madeley, [2016] O.J. No. 5001, 2016 ONCJ 579, 32 C.R. (7th) 136, 133 W.C.B. (2d) 119; R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, J.E. 2004-131, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116; R. v. Mahmood, [2016] O.J. No. 3259, 2016 ONCA 75; R. v. Metin (2013), 113 O.R. (3d) 716, [2013] O.J. No. 176, 2013 ONCA 21, 302 O.A.C. 35, 104 W.C.B. (2d) 1240; R. v. Michaud (2015), 127 O.R. (3d) 81, [2015] O.J. No. 4540, 2015 ONCA 585, 339 O.A.C. 41, 341 C.R.R. (2d) 89, 82 M.V.R. (6th) 171, 22 C.R. (7th) 246, 328 C.C.C. (3d) 228, 126 W.C.B. (2d) 70 [Leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 450]; R. v. Morgentaler, [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, J.E. 88-220, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 3 W.C.B. (2d) 332; R. v. Moriarity, [2015] 3 S.C.R. 485, [2015] S.C.J. No. 55, 2015 SCC 55, 24 C.R. (7th) 357, 477 N.R. 356, 344 C.R.R. (2d) 319, 332 C.C.C. (3d) 38, 394 D.L.R. (4th) 573, 2015EXP-3269, J.E. 2015-1813, EYB 2015-258807, 128 W.C.B. (2d) 26; R. v. Novielli, [2015] O.J. No. 1903, 2015 ONCJ 192, 333 C.R.R. (2d) 172, 322 C.C.C. (3d) 239, 121 W.C.B. (2d) 224; R. v. Nur, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, 2015 SCC 15, 332 C.R.R. (2d) 128, 18 C.R. (7th) 227, 469 N.R. 1, 322 C.C.C. (3d) 149, 385 D.L.R. (4th) 1, 332 O.A.C. 208, 2015EXP-1133, 121 W.C.B. (2d) 117, J.E. 2015-622, EYB 2015-250517; R. v. Olson, [1989] 1 S.C.R. 296, [1989] S.C.J. No. 7, 96 N.R. 223, J.E. 89-622, 33 O.A.C. 369, 47 C.C.C. (3d) 491, 7 W.C.B. (2d) 98, affg (1987), 62 O.R. (2d) 321, [1987] O.J. No. 855, 22 O.A.C. 287, 38 C.C.C. (3d) 534, 3 W.C.B. (2d) 61 (C.A.); R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. Roach, [2009] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96, 185 C.R.R. (2d) 333; R. v. Safarzadeh-Markhali, [2016] 1 S.C.R. 180, [2016] S.C.J. No. 14, 2016 SCC 14, 27 C.R. (7th) 265, 334 C.C.C. (3d) 1, 354 C.R.R. (2d) 309, 396 D.L.R. (4th) 575, 347 O.A.C. 1, 482 N.R. 90, 2016EXP-1219, J.E. 2016-662, EYB 2016-264529, 129 W.C.B. (2d) 125; R. v. Smith, [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, 40 D.L.R. (4th) 435, 75 N.R. 321, [1987] 5 W.W.R. 1, J.E. 87-810, 15 B.C.L.R. (2d) 273, 34 C.C.C. (3d) 97, 58 C.R. (3d) 193, 31 C.R.R. 193, 2 W.C.B. (2d) 303; R. v. Smits, [2012] O.J. No. 3629, 2012 ONCA 524, 294 O.A.C. 355, 36 M.V.R. (6th) 217, 102 W.C.B. (2d) 316; R. v. Tinker (2014), 120 O.R. (3d) 791, [2014] O.J. No. 2056, 2014 ONCJ 208, 11 C.R. (7th) 43, 309 C.R.R. (2d) 291, 113 W.C.B. (2d) 206; R. v. Topp, [2011] 3 S.C.R. 119, [2011] S.C.J. No. 43, 2011 SCC 43, 421 N.R. 95, 283 O.A.C. 1, 2011EXP-2880, J.E. 2011-1613, 336 D.L.R. (4th) 432, 272 C.C.C. (3d) 417, 86 C.R. (6th) 271, 96 W.C.B. (2d) 347; R. v. Transport Robert (1973) Ltée (2003), 68 O.R. (3d) 51, [2003] O.J. No. 4306, 234 D.L.R. (4th) 546, 178 O.A.C. 361, 180 C.C.C. (3d) 254, 16 C.R. (6th) 136, 112 C.R.R. (2d) 363, 46 M.V.R. (4th) 24, 59 W.C.B. (2d) 417 (C.A.); R. v. Wu, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, 2003 SCC 73, 234 D.L.R. (4th) 87, 313 N.R. 201, J.E. 2004-142, 182 O.A.C. 6, 180 C.C.C. (3d) 97, 16 C.R. (6th) 289, 113 C.R.R. (2d) 297, 59 W.C.B. (2d) 138, JCPQ 2004-3; R. v. Zelensky, [1978] 2 S.C.R. 940, [1978] S.C.J. No. 48, 86 D.L.R. (3d) 179, 21 N.R. 372, [1978] 3 W.W.R. 693, 41 C.C.C. (2d) 97, 2 C.R. (3d) 107, 2 W.C.B. 320; Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, J.E. 93-1670, 34 B.C.A.C. 1, 82 B.C.L.R. (2d) 273, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281, 17 C.R.R. (2d) 193, 20 W.C.B. (2d) 589
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(i), 12, 15
Constitution Act, 1867, s. 92
Controlled Drugs and Substances Act, S.C. 1996, c. 19 [as am.], s. 4(1)
Criminal Code, R.S.C. 1985, c. C-46, ss. 88 [as am.], 264.1 [as am.], 266 [as am.], 270(1)(b), 344(1) [as am.], 430(4) [as am.], 465(1)(c), Part XVI [as am.], ss. 495(1), 497 [as am.], Part XVIII [as am.], ss. 718 [as am.], (f), 733.1(1), 734(2), (3) [as am.], (4), (5), 734.1, 734.3 [as am.], 734.5(b), 734.6, 734.7 [as am.], (1), (a)(ii), (b), (i), (ii), (3), 736 [as am.], 737 [as am.], (1) [as am.], (2) [as am.], (3), (4), (7), (9) [as am.], 737.4, 738(1) [as am.], 839(1)
Excise Act, R.S.C. 1985, c. E-14 [as am.]
Highway Traffic Act, R.S.O. 1990, H.8, s. 84.1(3), (5)
Increasing Offenders’ Accountability for Victims Act, S.C. 2013, c. 11, s. 3(1)
Mental Health Act, R.S.O. 1990, c. M.7 [as am.]
Rules and regulations referred to
Exemptions, Special Rules and Establishment of Minimum Wage, O. Reg. 285/01, s. 5(1)
Authorities referred to
House of Commons Debates (Hansard), 33d Parl., 2d Sess., Vol. 9 (19 November 1987)
House of Commons Debates (Hansard), 41st Parl., 1st Sess., No. 146 (17 September 2012)
House of Commons Debates (Hansard), 41st Parl., 1st Sess., No. 196 (11 December 2012)
House of Commons, Standing Committee on Justice and Human Rights, Minutes of Proceedings, 41st, 1st Sess., No. 46 (23 October 2012)
House of Commons, Standing Committee on Justice and Human Rights, Victims’ rights: a voice, not a veto: Report of the Standing Committee on Justice and Human Rights (October 1998)
Appeal from the decision of Glass J., [2015] O.J. No. 1758, 2015 ONSC 2284, 20 C.R. (7th) 174 (S.C.J.) allowing the appeal from the sentence imposed by Beninger J. (2014), 120 O.R. (3d) 784, [2014] O.J. No. 2056, 2014 ONCJ 208.
Appeal from the decision of Paciocco J., [2015] O.J. No. 1869, 2015 ONCJ 222.
Appeal from the decision of Lacelle J., [2015] O.J. No. 7135, 2015 ONSC 5407 (S.C.J.) allowing the appeal from the sentence imposed by Legault J., [2014] O.J. No. 4113, 2014 ONCJ 428.
Delmar Doucette, Daniel Santoro and Megan Howatt, for appellants Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead.
James Foord and Brandon Crawford, for appellant Garret Eckstein.
Yves Jubinville, for appellant Daniel Larocque.
Michael Perlin and Philippe Cowle, for respondent Attorney General of Ontario.
Luc Boucher and Tim Radcliffe, for respondent Service des poursuites pénales du Canada.
Jackie Esmonde and Daniel Rohde, for intervenor Income Security Advocacy Centre.
Diana Lumba, for intervenor Criminal Lawyers’ Association.
Christopher Bredt, Pierre Gemson and Rahim Jamal, for intervenor Canadian Civil Liberties Association.
The judgment of the court was delivered by
[1] Pardu J.A.: — Does the mandatory imposition of a victim surcharge following a conviction for a criminal offence violate the Canadian Charter of Rights and Freedoms? Where it is foreseeable that the offender will not be able to pay for some time, a court may grant the offender an extension of the time to pay. Extensions are not procedurally difficult to obtain. An impoverished offender who cannot pay the surcharge within the time provided cannot be imprisoned for failure to pay. No civil enforcement mechanism, such as garnishment or seizure of assets, is available to enforce collection of the surcharge.
[2] The mandatory victim surcharge in s. 737 of the Criminal Code, R.S.C. 1985, c. C-46 does not limit the rights guaranteed by ss. 7 or 12 of the Charter. I would dismiss these appeals.
A. Background
[3] I will begin by describing the statutory scheme governing the imposition and enforcement of the surcharge that is challenged in this appeal. Then, I will describe the appellants and the procedural history of these appeals.
(1) The surcharge regime
(i) Mandatory imposition of the surcharge in s. 737 of the Code
[4] Section 737(1) of the Code provides that a person convicted of an offence under the Code, or the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), “shall pay a victim surcharge” in addition to any other punishment imposed on the offender. The language of the provision makes the imposition of the surcharge mandatory.
[5] The mandatory nature of s. 737(1) was introduced in 2013 with the passage of the Increasing Offenders’ Accountability for Victims Act, S.C. 2013, c. 11 (“Bill C-37”). Before the passage of Bill C-37, s. 737(1) of the Code gave the court discretion, on an application by the offender, to exempt the offender from the surcharge “[w]hen 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” (emphasis added). Section 3(1) of Bill C-37 changed s. 737(1) of the Code into its present form and made the surcharge mandatory.
[6] The amount of the surcharge is equal to 30 per cent of any fine imposed on an offender at sentencing. If no fine is imposed, it is equal to $100 in the case of a summary conviction offence or $200 in the case of an indictable offence: s. 737(2). But the court may make an order for an amount exceeding the prescribed amount if the court considers such an order appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount: s. 737(3).
[7] Under s. 737(4) of the Code, the surcharge is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. In Ontario, the time is 30 days for summary conviction offences and 60 days for indictable offences: Order in Council, O.C. 2173/99.
(ii) Enforcement of the surcharge through the “Fines and Forfeiture” provisions of the Code
[8] Section 737(9) of the Code makes certain of the “Fines and Forfeiture” provisions of the Code applicable to enforce the victim surcharge. These provisions are integral components of the surcharge regime established by s. 737.
[9] Section 734(3) of the Code provides that a person is in default of payment of the surcharge if the surcharge has not been paid in full by the time specified in the terms of the order imposing the surcharge. The content of the order is prescribed in s. 734.1. It must include the time or times by which the fine, or any portion of it, must be paid.
[10] However, s. 734.3 provides that, on application by or on behalf of an offender, a court that makes an order under s. 734.1 may change any term of the order except the amount of the surcharge. The court may accordingly extend the time by which the surcharge is to be paid.
[11] If an offender defaults on payment of the surcharge, the province may refuse to issue or renew, or may suspend, a licence, permit or other instrument in relation to the offender until the surcharge is paid in full: s. 734.5(b).
[12] A term of imprisonment is deemed to be imposed on an offender in default of payment of the surcharge: s. 734(4). Under s. 734(5), the term is equal to the lesser of two amounts: first, the unpaid amount of the surcharge, plus the costs of committing the defaulter to prison, divided by eight times the applicable provincial minimum wage; and, second, five years in the case of an indictable offence or six months in the case of a summary conviction offence. With the minimum wage in Ontario currently being $12.10 an hour (O. Reg. 285/01, s. 5(1)), the term of imprisonment in Ontario for defaulting on the entirety of a $200 surcharge imposed on someone convicted of an indictable offence would be approximately two days. It is theoretically possible for a person convicted of multiple indictable offences, who has defaulted on paying multiple surcharges, to be subject to a five-year term of imprisonment under s. 734(5).
[13] However, s. 734.7 of the Code establishes conditions to be met, and a process for a committal hearing, before a warrant for a defaulting offender’s committal can be issued. It provides:
734.7(1) Where time has been allowed for payment of a fine, the court shall not issue a warrant of committal in default of payment of the fine
(a) until the expiration of the time allowed for payment of the fine in full; and
(b) unless the court is satisfied
(i) that [a licence suspension or refusal is] not appropriate in the circumstances, or
(ii) that the offender has, without reasonable excuse, refused to pay the fine or discharge it under section 736.
(Emphasis added)
[14] Section 736 of the Code, referred to at the end of s. 734.7(1), provides for a “fine option program”, to be established by the relevant province, through which an offender in default of the surcharge may earn credits towards payment of the surcharge for work in the program. Ontario has not established such a program.
[15] An offender who has defaulted on a surcharge payment may be compelled to appear at a committal hearing by means of the methods set out in Parts XVI and XVIII of the Code: s. 734.7(3). These include laying an information against the offender or issuing a summons to appear or a warrant for the offender’s arrest.
[16] Finally, s. 737(9) of the Code does not import procedures in s. 734.6 through which the government may commence civil proceedings against an offender who has defaulted on a surcharge payment to recover the amount of the fine imposed.
(2) The Decisions under Appeal
(i) The Tinker appellants
[17] There are four appellants in the first appeal considered in these reasons (collectively, the “Tinker appellants”). They were convicted of separate offences at separate times, but they were all sentenced together. The sentencing judge held that the surcharge was unconstitutional and refused to apply it in his sentencing decisions.
[18] Edward Tinker was 55 years old at the time of sentencing. He pleaded guilty to one count of uttering threats contrary to s. 264.1 of the Code and one count of breach of probation. The Crown proceeded summarily. The sentencing judge, Beninger J., imposed a sentence of 26 days’ imprisonment, after credit for pre-trial custody, to be served intermittently followed by a two-year probation period. A ten-year firearms prohibition order and a DNA databank order were also made.
[19] Mr. Tinker is unable to work due to a workplace injury. He suffers from heart disease and cancer. He has no savings. He is receiving CPP and Workers’ Compensation benefits totalling $1,200 per month. His monthly costs include $950 for rent and $80 for medication (although he receives reimbursement of some medication costs at the end of the year). His disposable income thus amounts to about $170 per month.
[20] Kelly Judge was 53 years old at the time of sentencing. She pleaded guilty to the summary conviction offences of assault contrary to s. 266 and uttering threats contrary to s. 264.1 of the Code. Beninger J. imposed a suspended sentence and 18 months’ probation, after credit for pre-trial custody, and made a firearms prohibition order and a DNA databank order.
[21] Ms. Judge is legally blind and a recovering alcoholic. She suffers from depression and bi-polar disorder. She has savings of $2,000. Her income is $831 per month from CPP disability benefits and her rent is $800 per month, which leaves her with $31 per month plus her savings for all her other expenses.
[22] Michael Bondoc was 24 years old at the time of sentencing. He pleaded guilty to two summary conviction counts of breach of probation contrary to s. 733.1(1) of the Code. Beninger J. imposed a sentence of 33 days’ incarceration, after pre-trial credit.
[23] Mr. Bondoc immigrated to Canada at the age of 14 with his mother. At the time of sentencing, he was laid off from his employment due to a lack of work.
[24] Wesley Mead was 46 years old at the time of sentencing. He is married with two children, aged 14 and 8. He pleaded guilty to the summary conviction offences of possession of a weapon for a purpose dangerous to public peace, contrary to s. 88 of the Code, one count of assault, contrary to s. 266, and resisting arrest contrary to s. 270(1)(b). Beninger J. imposed a suspended sentence and 18 months’ probation, after credit for pre-trial custody, and made a firearms prohibition order and a DNA databank order.
[25] It is beyond dispute that Mr. Tinker, Ms. Judge and Mr. Bondoc face social hardship — what they refer to as “marginalization” — as a result of mental and physical disability, poor health, poverty, lack of steady income or employment and recent immigrant status. They all received modest sentences for summary conviction offences.
[26] For each of the Tinker appellants, Beninger J. reserved on the issue of whether to impose the surcharge under s. 737 of the Code, as they each brought an application challenging the constitutional validity of the surcharge under ss. 7, 12 and 15 of the Charter.
The Tinker appellants also challenged s. 737 of the Code on the ground that it was ultra vires the legislative authority of Parliament because it amounted to direct taxation within the provinces, a subject of power exclusively reserved for the provinces under s. 92 of the Constitution Act, 1867. The sentencin
[27] Beninger J. made note of the 2013 amendments made to s. 737 of the Code by Bill C-37. He stated that, if he still had the discretion to refrain from imposing the surcharge in the present case, he would do so, given the hardship to the appellants that would result from imposing the surcharge. He concluded that the surcharge infringes s. 7 of the Charter. He held that the objective of the surcharge is to “increase offenders’ accountability to victims of crime” by eliminating judicial discretion to waive the surcharge but that “the removal of the Court’s ability to waive the surcharge is arbitrary, overreaching, and grossly disproportionate to the legislative goal which is advocated”: R. v. Tinker (2014), 120 O.R. (3d) 791, [2014] O.J. No. 2056, 2014 ONCJ 208, at paras. 30-34. He held that the infringement is not justifiable under s. 1 of the Charter. Having reached these conclusions, he decided that it was not necessary to consider whether the surcharge infringes ss. 12 or 15 of the Charter.
[28] The SCAC judge, Glass J., overturned the sentencing judge’s decision, holding that s. 737 of the Code does not infringe s. 7 of the Charter. He stated that the appellants were in a similar situation as the offender at issue in R. v. Wu, supra. Although Wu did not involve a Charter challenge, the Supreme Court of Canada held that an indigent offender should be granted extensions of time to pay a mandatory fine imposed by the Excise Act, R.S.C. 1985, c. E-14. Glass J. stated that the appellants could also be given extensions of time to pay the surcharge imposed by s. 737 of the Code.
[29] Glass J. applied the surcharge to each appellant in accordance with s. 737 of the Code. The total amount of the surcharge for Mr. Tinker, Ms. Judge and Mr. Bondoc was $200 each; for Mr. Mead, it was $300. The Crown consented to an allowance of two years for them to pay the surcharge, which Glass J. accepted.
(ii) Garrett Eckstein
[30] Garrett Eckstein pleaded guilty to the indictable offences of robbery, conspiracy to commit robbery and breach of probation, contrary to ss. 344(1), 465(1)(c) and 733.1(1) of the Code, respectively. The sentencing judge, Paciocco J., imposed a sentence of eight months’ incarceration less pre-trial custody.
judge declined to consider this ground, it was not raised before the SCAC and it is not raised before this court.
[31] Mr. Eckstein also faced a mandatory victim surcharge under s. 737 of the Code of $600. He brought an application challenging the validity of s. 737 under s. 12 of the Charter, not in relation to his circumstances but in relation to hypothetical offenders. The hearing was held after the decision of Glass J. in Tinker was released.
[32] Paciocco J. held that he was bound by Tinker, even though the issue in Tinker was whether the surcharge infringes s. 7 of the Charter. He reasoned [at para. 29] that “it would not be appropriate for courts to interpret the concept of proportionality differently under s. 7 than it is interpreted under s. 12”. He had previously decided in R. v. Michael (2014), 121 O.R. (3d) 244, [2014] O.J. No. 3609, 2014 ONCJ 360 that the surcharge breaches s. 12 of the Charter in a manner that is not justified under s. 1. However, he concluded that he was bound by Tinker even though it is inconsistent with Michael.
[33] Paciocco J. therefore applied the $600 surcharge to Mr. Eckstein’s sentence and gave him 12 months to pay it.
(iii) Daniel Larocque
[34] Daniel Larocque is 22 years old. He pleaded guilty to seven summary conviction charges: possession of morphine contrary to s. 4(1) of the CDSA; three counts of assault contrary to s. 266 of the Code; uttering threats contrary to s. 264.1 of the Code; and two counts of mischief contrary to s. 430(4) of the Code.
[35] Like certain of the Tinker appellants, Mr. Larocque faces undeniable hardship in his life. He is impecunious and suffers from drug addiction and mental illness. He was placed with a children’s aid society when he was a child and he has consumed alcohol and various drugs since adolescence. He pays for his housing and food using disability benefits, leaving him with $136 per month to pay for other expenses.
[36] Following a joint submission by the Crown and defence, and taking into account 68 days’ pre-trial custody, the sentencing judge, Legault J., imposed a six-month conditional sentence and 18 months’ probation for Mr. Larocque.
[37] Mr. Larocque was subject to a $700 surcharge under s. 737 of the Code. He brought an application challenging the constitutionality of s. 737 under ss. 7, 12 and 15 of the Charter. A separate hearing was held to deal with the application.
[38] Legault J. held that the provision unjustifiably infringes s. 12 and refused to impose the surcharge. The effects on Mr. Larocque of imposing the $700 surcharge, in addition to the other elements of his sentence, were grossly disproportionate to the gravity of the offences he committed, given Mr. Larocque’s particular circumstances. His mental and physical disabilities and lack of income would prevent him ever being able to pay the surcharge, which would amount to punishment without end. He would have to sacrifice funds to pay for his health, hygiene, sustenance and clothing to pay the surcharge, which would reduce his already low quality of life. Legault J. declined to consider the ss. 7 and 15 Charter challenges.
[39] The Crown appealed. The SCAC judge, Lacelle J., agreed that the surcharge constitutes “punishment” under s. 12 of the Charter and that, in any event, it constitutes “treatment” under s. 12. However, she concluded that it is not cruel and unusual. Citing the Supreme Court’s decision in Wu, she held that it was an error to assume, at the time of sentencing, that Mr. Larocque’s financial circumstances would continue into the future such that he would be forever unable to pay the surcharge. There was also no evidence to support the finding that, if left unpaid, the surcharge would create ongoing stress for him rising to the level of cruel and unusual punishment or treatment. Lacelle J. further held that the amount of the surcharge imposed by s. 737 of the Code was proportionate to the number of convictions entered against Mr. Larocque and the fact that he was convicted of summary conviction offences. She referred to R. v. Pham, [2002] O.J. No. 2545, 167 C.C.C. (3d) 570 (C.A.), in which this court held that a very large mandatory minimum fine imposed under the Excise Act for possessing contraband tobacco did not infringe s. 12 of the Charter, even though the offender in that case had no ability to pay a fine of that amount.
[40] Lacelle J. went on to hold that s. 737 of the Code does not infringe s. 7 of the Charter. Mr. Larocque was not deprived of liberty by s. 737. The requirement under s. 737.4 of the Code for a court to be satisfied that an offender refused to pay a surcharge without reasonable excuse before issuing a warrant for committal ensures that the offender cannot be imprisoned for default. Mr. Larocque was also not deprived of his security of the person, as he could apply for extensions of time to pay the surcharge under s. 734.3 of the Code instead of having to pay using the funds he needs to pay for the necessaries of life.
[41] Finally, Lacelle J. held that s. 737 of the Code does not infringe s. 15 of the Charter. It does not create a distinction based on an enumerated or analogous ground by having a disproportionate negative impact on those with physical or mental disabilities, such as Mr. Larocque.
(1) Leave to appeal
[42] Before this court, the Tinker appellants renew their ss. 7, 12 and 15 Charter claims. Mr. Eckstein and Mr. Larocque each pursue their s. 12 claims.
[43] A preliminary issue is whether the appellants should be granted leave to appeal their claims pursuant to s. 839(1) of the Code, which provides that an appeal from a decision of a SCAC involving a question of law alone requires leave from this court.
[44] The governing test for leave was developed in R. v. R. (R.), (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, at paras. 29-31. It was summarized in R. v. Metin (2013), 113 O.R. (3d) 716, [2013] O.J. No. 176, 2013 ONCA 21, at para. 15 as follows:
(1) the proposed appeal must involve a question of law alone;
(2) the proposed question of law must be significant, beyond the particular case, to the administration of justice in the province; and
(3) the proposed appeal should have some apparent merit.
[45] The Crown concedes that, applying this test, this court should grant each appellant leave to pursue their ss. 7 and 12 Charter claims. I agree. The significance of the constitutional questions to the administration of justice in Ontario is apparent. Their resolution by this court will affect the everyday practice of provincial court and Superior Court sentencing judges, who are required to impose the surcharge by s. 737 of the Code. It will also assist in resolving inconsistency in the law. In addition to the decisions under appeal here, the constitutionality of s. 737 has been considered in Michael; R. v. Flaro, [2014] O.J. No. 94, 2014 ONCJ 2, 7 C.R. (7th) 151; R. v. Javier, [2014] O.J. No. 3725, 2014 ONCJ 361, 318 C.R.R. (2d) 1 R. v. Novielli, [2015] O.J. No. 1903, 2015 ONCJ 192, 322 C.C.C. (3d) 239; and R. v. Madeley, [2016] O.J. No. 5001, 2016 ONCJ 579, 32 C.R. (7th) 136. The courts have reached differing conclusions on the issue. The validity of s. 737 has also been considered outside Ontario, again with mixed results. In R. v. Barinecutt, [2015] B.C.J. No. 1376, 2015 BCPC 189, 337 C.R.R. (2d) 1, the British Columbia Provincial Court ruled that the surcharge infringes ss. 7 and 12 of the Charter. Quebec courts have ruled that the surcharge does not infringe s. 12 of the Charter: R. c. Malouin, [2015] J.Q. no 15737, 2015 QCCQ 14118; and R. c. Boudreault, [2016] J.Q. no 16795, 2016 QCCA 1907, 343 C.C.C. (3d) 131. These inconsistent results across the country suggest that the appellants’ proposed appeals on s. 7 and s. 12 Charter grounds have some apparent merit.
[46] However, the Crown submits that leave should not be granted to the Tinker appellants’ s. 15 Charter challenge. I accept this submission.
[47] Although the Tinker appellants raised the s. 15 issue at sentencing, it was not before the SCAC judge. In R. (R.), at para. 38, Doherty J.A. stated that, for summary conviction appeals to this court that have already gone through the SCAC, “[g]enerally speaking, this court should not entertain legal arguments that were not advanced at the first level of appeal”. See also R. v. Im, [2009] O.J. No. 373, 2009 ONCA 101, 242 C.C.C. (3d) 77, at para. 23.
[48] I recognize that this court has discretion to depart from this strict approach: see R. v. Smits, [2012] O.J. No. 3629, 2012 ONCA 524, 36 M.V.R. (6th) 217, at para. 35. It has discretion to consider arguments not made before the court whose decision is appealed from, including Charter arguments: R. v. Roach, [2009] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96, at paras. 6-7.
[49] However, this court is generally at a disadvantage when it comes to hearing new issues that have not been fully canvassed by the court below. As Doherty J.A. wrote in Roach at para. 8, “[a]ppeal courts review decisions made at trial. The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court.” Furthermore, this court will be better situated to entertain a new issue raised on appeal if the factual record before it is sufficiently robust to permit the new issue to be “fully, effectively and fairly addressed on appeal even though it was not raised at trial”: Roach, at para. 7. See also Smits, at para. 35.
[50] The sentencing judge in Tinker did not consider it necessary to decide the appellants’ s. 15 challenge to the surcharge in the Code. He made no factual findings in relation to this issue. Nor did the SCAC judge, as the issue was not before him either. This court therefore does not have the benefit of a fulsome and detailed analysis by the courts below of the complex jurisprudence interpreting s. 15 of the Charter or applying that jurisprudence to s. 737 of the Code in the context of a robust factual record.
[51] The Tinker appellants did not press the s. 15 aspect of their Charter claims in oral argument before this court. Although they raised s. 15 in their written submissions, in oral argument they chose to focus instead on their ss. 7 and 12 Charter claims.
[52] For these reasons, I would not grant leave to appeal on the issue of whether the victim surcharge violates the s. 15 Charter rights of the Tinker appellants.
(2) Four propositions concerning the actual operation of the surcharge regime
[53] Before directly addressing the ss. 7 and 12 Charter challenges properly before this court, I propose to outline four propositions concerning the statutory scheme in which s. 737 of the Code is situated. Some of these emerge from judicial interpretations of the relevant Fines and Forfeiture provisions of the Code that are used to enforce the surcharge. As we shall see, appreciating the actual operation of the surcharge regime is critical for assessing the effect of the surcharge on the appellants’ constitutionally protected interests.
[54] First, if an offender who became subject to the surcharge when he or she was sentenced subsequently applies under s. 734.3 of the Code to extend the time to pay the surcharge before defaulting, relying on a lack of means to pay, the court must grant the application and give the offender time to pay that is reasonable in the circumstances.
[55] This proposition is supported by the Supreme Court of Canada’s decision in Wu (although that decision did not involve a constitutional challenge). In Wu, an offender was convicted of possession of 300 cartons of contraband cigarettes. The Excise Act imposed a mandatory minimum fine, irrespective of an offender’s ability to pay, calculated at $0.16 per contraband cigarette. For the offender at issue, this amounted to $9,600.
[56] The trial judge found that the offender was, at the time of sentencing and in the foreseeable future, not able to pay such a large fine. He was of the view that imprisonment for any length of time would not be a fit sentence and that it would not be just for the offender to be incarcerated for defaulting in payment of the fine. The trial judge resolved this problem by imposing the fine and giving no time to pay, which put the offender into immediate default and exposed him to potential incarceration. The trial judge then imposed a conditional sentence to be served by the offender in the community. The issue before the Supreme Court was whether the conditional sentence was validly imposed.
[57] A majority of the Supreme Court held it was an error for the trial judge to impose the minimum fine and not give the offender time to pay. This improperly turned a penalty that Parliament intended to restrict the offender’s financial interests to one that restricted his liberty. Binnie J. wrote, at para. 31, that “[i]f it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay. The time should be what is reasonable in all the circumstances” (citations omitted). This principle was reiterated in a different context in R. v. Lavigne, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10, 2006 SCC 10, at para. 47.
[58] Returning to the first proposition concerning the actual operation of the Code’s surcharge regime articulated above, if an impoverished offender applies to the court to extend the time to pay a surcharge to which he or she is subject, the court must give the offender reasonable time to pay. Although in Ontario there are set times within which a surcharge must be paid that must be imposed along with the surcharge at sentencing, there is no reason why the offender cannot bring an application for an extension of time at the conclusion of a sentencing hearing itself so as to obtain an extension immediately after the surcharge is imposed. I would add the observation that neither s. 737 of the Code nor the Code’s Fines and Forfeiture provisions specify that a formal court application is necessary to obtain an extension of the time to pay. Obtaining an extension should not be onerous or procedurally difficult. A lengthy extension may be granted where the offender will be unable to pay in the foreseeable future.
[59] The second proposition is that an offender defaults on payment of the surcharge only if the offender does not pay it within the time specified by the province or, if an extension of time has been granted, within the time specified in the order granting the extension. It is thus possible for an offender who lacks the means to pay the surcharge to continually apply for extensions of time that are reasonable in the circumstances, which must be granted, so as to never default. An offender can be subject to regulatory consequences, such as a licence suspension, only in the event of default. Civil proceedings against a defaulting offender are never available.
[60] The third proposition is that an offender who defaults on the surcharge may be compelled to appear before the court at a committal hearing pursuant to s. 734.7 of the Code. The state may make use of the enforcement mechanisms set out in Parts XVI and XVIII of the Code for this purpose.
[61] The fourth and final proposition is that, although s. 734(4) of the Code deems that a defaulting offender shall be imprisoned, s. 734.7 prevents a defaulting offender who lacks the means to pay from being imprisoned.
[62] This proposition is also supported by Wu. Binnie J. acknowledged the trial judge’s concern about not imprisoning offenders whose impecuniosity makes them unable to pay a mandatory fine. But he held that this concern was misplaced, as s. 734.7(1) of the Code provides that a court may not issue a warrant for the committal of an offender who defaults on payment of a fine unless the Crown proves that the offender has refused to pay “without reasonable excuse”.
[63] The thrust of Binnie J.’s reasoning was that an offender’s poverty is a “reasonable excuse” under s. 734.7(1) preventing him from ever being subject to imprisonment for failure to pay a mandatory fine. He stated at para. 63 that “the concern about overuse of jail for poor people for unpaid fines” was “an important impetus” behind the enactment of s. 734.7(1). The Crown has the burden of establishing the offender has refused to pay the fine without reasonable excuse. Section 734.7(1) of the Code indicates that “the purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment”: para. 3. See also Lavigne, at para. 47; and R. v. Bourque, [2005] O.J. No. 591, 193 C.C.C. (3d) 485 (C.A.), at paras. 14-16.
[64] Thus, an offender who defaults on paying the victim surcharge and who is unable to pay it cannot be imprisoned as a result of a committal hearing pursuant to s. 734.7 of the Code. Inability to pay is a reasonable excuse under s. 734.7(1)(a)(ii). The Crown will not be able to satisfy the court that an indigent offender who is truly unable to pay refused to pay the surcharge without reasonable excuse. The possibility of imprisonment acts as a legitimate and serious encouragement to pay the surcharge only for offenders who have the means to pay.
[65] Against this backdrop, I will now address the ss. 7 and 12 Charter challenges raised by the appellants against s. 737 of the Code.
(3) Section 7 of the Charter
[66] Section 7 of the Charter provides:
7.Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[67] In order to demonstrate a violation of s. 7, the Tinker appellants must first show that s. 737 of the Code deprives them of life, liberty or security of the person. If s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, at para. 55.
(i) Deprivation of liberty: Imprisonment and compulsion to appear at a committal hearing
[68] The Tinker appellants submit that s. 737 deprives them of liberty because it is possible for them to be imprisoned for defaulting on payment of the surcharge: see Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, at p. 492 S.C.R. They also submit that the possibility for them to be compelled to appear at a committal hearing under s. 734.7 of the Code deprives them of liberty.
[69] The surcharge regime does not deprive the Tinker appellants of liberty by exposing them to imprisonment if they are unable to pay the surcharge. Wu establishes that impecunious offenders cannot be imprisoned for failing to pay the surcharge. The Crown cannot satisfy a court that a warrant for committal should issue under s. 734.7 because genuine inability to pay is a reasonable excuse for not paying the surcharge. The court would commit a legal error under Wu by issuing the committal warrant in such circumstances. I note parenthetically that it was not argued before this court that the possibility of imprisonment for an offender who is able to pay, but who refuses to do so without reasonable excuse within the time provided for payment, amounts to a deprivation of liberty under s. 7 of the Charter.
[70] However, I agree that the possibility of being compelled to appear at a committal hearing deprives the Tinker appellants of liberty. Apart from actual imprisonment, other physical acts compelled through the state’s coercive power also engage s. 7 liberty interests, such as state compulsion of individuals to be fingerprinted (R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, at p. 402 S.C.R.) or give oral testimony in court (Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, at para. 67). Section 734.7(3) permits an offender who defaults on a surcharge to be potentially arrested or summoned to appear at a committal hearing. This amounts to state compulsion of physical acts that engages s. 7 of the Charter.
(ii) Deprivation of security of the person: Psychological stress
[71] The Tinker appellants also submit that the imposition of the surcharge deprives them of security of the person because it causes them “serious state-imposed psychological stress”: see R. v. Morgentaler, [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, at p. 56 S.C.R. They say that, given their poverty and inability to pay, the surcharge subjects them to the stress of perpetual indebtedness, which may never be extinguished and may hang over them forever. It subjects them to an unending stigma of criminalization that hinders their efforts at rehabilitation and exacerbates their pre-existing marginalization. The only way they can avoid these consequences and pay the surcharge is by sacrificing the funds they need to pay for the necessaries of life.
[72] I do not accept this submission. I accept that Mr. Tinker, Ms. Judge and Mr. Bondoc suffer some stress and anxiety from being subject to the surcharge when they do not have the means to pay it and suffer other forms of significant social hardship. However, as I shall explain, any stress they experience by reason of being unable to pay the surcharge does not rise to the level of depriving them of psychological security of the person under s. 7 of the Charter.
[73] In New Brunswick (Minister of Health and Community Services), v. G. (J.), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, at paras. 59-60, Lamer C.J.C. held that state-imposed psychological stress engages s. 7 only if it rises above the ordinary level or stress or anxiety that a person of reasonable sensibility, assessed from an objective perspective, would suffer as a result of the state action. It need not rise to the level of nervous shock or psychiatric illness, but it must be objectively out of the ordinary or else “countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected”.
[74] Despite the high threshold, the Supreme Court has held that psychological security of the person is engaged by: state-imposed barriers to accessing therapeutic abortion (Morgentaler); the criminalization of physician-assisted dying for grievously ill patients (Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94); the removal of a child from parental custody (G. (J.)); state-imposed delays in accessing necessary medical treatment (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35); and the imposition of conditions that heighten the danger of the inherently risky but legal activity of prostitution (Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72).
[75] These decisions establish that for an incursion into psychological integrity to amount to a deprivation of security of the person, it must interfere with the personal autonomy, dignity or privacy of the individual “in an intimate and profound way”: R. v. Transport Robert (1973) Ltée (2003), 68 O.R. (3d) 51, [2003] O.J. No. 4306 (C.A.), at para. 28. For example, in Rodriguez, Sopinka J. stated at p. 588 S.C.R.:
[P]ersonal autonomy, at least with respect to the right to make choices concerning one’s own physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.
See also Carter, at paras. 64-68. Similarly, in G. (J.), Lamer C.J.C. wrote at para. 61 that “direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere”.
[76] In sum, state conduct reaches the high threshold for a deprivation of psychological security of the person only if it constitutes interference “with an individual interest of fundamental importance”, such as interference with “profoundly intimate and personal choices of an individual”, including “the right to make decisions concerning one’s body free from state interference or the prospect of losing guardianship of one’s children”: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, at paras. 81, 83.
[77] In my view, the imposition of the victim surcharge on the Tinker appellants does not interfere with an individual interest of fundamental importance. The choice about whether to pay the surcharge cannot be regarded as an interest that is akin to choices concerning one’s own body or the interest in maintaining a private relationship with one’s own child.
[78] The stress that comes from being subject to long periods of indebtedness, in my view still does not disturb the Tinker appellants’ psychological integrity to the extent needed to reach the high threshold for engaging s. 7 of the Charter. It is an unfortunate fact that many Canadians are subject to long periods of indebtedness. Many of these people may be just as unable to discharge the debt due to impecuniosity, disability or other disadvantage as the appellants are, with the difference being that the debt was not incurred as a result of criminal activity. The anxiety associated with having an unpaid surcharge is therefore not entirely out of the ordinary in Canadian society. To hold otherwise would potentially result in the expansion of the scope of judicial review that Lamer C.J.C. cautioned against in G. (J.).
[79] From an objective perspective, s. 737 of the Code does not force the appellants into a choice between paying the surcharge and paying for the necessaries of life, and it does not prevent the appellants’ rehabilitation or reintegration into society. An extension of time under s. 734.3 of the Code is always available, meaning that the appellants may never default on the surcharge. Although given their circumstances the appellants may experience difficulties in applying for an extension of time, an extension must be given. Because an application for an extension of time may be made by means of a simple document explaining that the offender does not have the means to pay immediately, the preconditions for obtaining one are not onerous. They are, for example, not as onerous as the preconditions for obtaining a therapeutic abortion — approval by the therapeutic abortion committee of an approved hospital — that were held to interfere with the emotional integrity and well-being of women in Morgentaler (p. 57 S.C.R.). Likewise, the prolongation of indebtedness caused by obtaining continuous extensions of time does not deprive the appellants of an interest of fundamental importance.
[80] Any anxiety derived from having an unpaid surcharge experienced by a person of reasonable sensibility is diminished when it is considered from an objective perspective. An offender cannot be imprisoned for failure to pay a surcharge if he or she lacks the means to pay and the surcharge cannot be collected by civil enforcement proceedings.
[81] Moreover, the stigma of having a large unpaid surcharge is not sufficient to interfere with the appellants’ psychological integrity. This court rejected a similar argument in Transport Robert, which involved a challenge to the constitutionality of s. 84.1(5) of the Highway Traffic Act, R.S.O. 1990, H.8. Section 84.1(5) creates an absolute liability offence for driving a commercial motor vehicle on a highway where a wheel becomes detached from the vehicle. Section 84.1(3) imposes a fine on offenders of up to $50,000. This court held that the stigma of being convicted of the regulatory offence did not engage psychological security of the person even when combined with the possibility of a very significant fine. It stated at para. 28: “This is simply not the kind of serious state-imposed psychological stress that is intended to be covered by security of the person. It is qualitatively different than the kinds of stresses that have been recognized in the cases.” See also Blencoe, at para. 86. The same can be said of the stigma of having an unpaid victim surcharge.
[82] I conclude that the surcharge regime in the Code engages the Tinker appellants’ liberty but not their security of the person. I turn now to consider whether the deprivation of liberty accords with the principles of fundamental justice.
(iii) Principles of fundamental justice: Overbreadth and gross disproportionality
[83] The appellants submit that s. 737 of the Code is not fundamentally just under s. 7 of the Charter because it is overbroad and grossly disproportionate.
[84] These principles of fundamental justice “compare the rights infringement caused by the law with the objective of the law”: Bedford, at para. 123. It is first necessary to identify the purposes of the surcharge regime in the Code to be able to then assess the relationship between these purposes and the means by which the regime attempts to pursue them — means that, as we have seen, include potentially engaging the Tinker appellants’ liberty interests: see Carter, at para. 73.
[85] To ascertain the law’s purposes in a s. 7 Charter analysis, this court must consider statements of purpose in the legislation; the text, context and scheme of the law; and extrinsic evidence such as legislative history and evolution: R. v. Moriarity, [2015] 3 S.C.R. 485, [2015] S.C.J. No. 55, 2015 SCC 55, at para. 31. The Supreme Court summarized the guidelines for stating an impugned law’s purposes in a s. 7 Charter analysis in R. v. Safarzadeh-Markhali, [2016] 1 S.C.R. 180, [2016] S.C.J. No. 14, 2016 SCC 14, at paras. 25-29.
(a) The two purposes of the surcharge regime
[86] There is no explicit statement of purpose in Bill C-37. However, drawing support from the text, context and scheme of the legislation, as well as extrinsic materials put before the court by the parties to this appeal, I would state the purposes of the regime as follows, bearing in mind the guidelines from Safarzadeh-Markhali:
(1) To rectify some of the harm done by criminal activity by raising funds for public services devoted to assisting victims of crime; and
(2) To hold offenders accountable to victims of crimes and to the community by requiring a contribution by them to these funds at the time of sentencing.
[87] Section 737(7) of the Code mandates that victim funds collected through payment of the surcharges are to be applied to provide assistance to victims of offences. When Bill C-37 was debated on first reading, Ms. Kerry-Lynne D. Findlay, Parliamentary Secretary to the Minister of Justice, described the uses to which victim fine surcharges are put in Ontario (House of Commons Debates (Hansard), 41st Parl., 1st Sess., No. 146 (17 September 2012), at p. 10050):
In Ontario, surcharge revenue funds a wide range of services provided to victims of crime. There are 39 sexual assault and rape crisis centres, including centres that provide French-language services. They provide a 24-hour crisis and support line; group and one-on-one counselling; accompaniment to hospital, court or police; information and referral services; and public awareness sessions. The Ontario victim crisis assistance and referral services provide short-term assistance on a 24/7 basis to victims at the scene of a crime and make referrals to community services for longer-term assistance. With the consent of the victim, the police can call a highly trained team of volunteers to the scene. More than 50 victim crisis assistance and referral services sites are located throughout Ontario to deliver the victim quick response program. Surcharge revenues help to fund the Ontario victim support line, which provides a province-wide, toll-free information line in English and French. Surcharge revenues also fund the Ontario child witness project, which provides specialized preparation and support to child victims and/or witnesses and their caregivers. They work closely with the victim/witness assistance programs in their communities.
[88] During questioning, Ms. Findlay stated, at p. 10051:
These are victim surcharges. They are meant to hold offenders accountable, meant for them to think on what they have done in terms of hurting the life in some way of their victims and to go directly to their services . . .
[89] Mr. Robert Goguen, also a Parliamentary Secretary to the Minister of Justice, added the following, at p. 10059:
Victim surcharges form part of an offender’s sentence and they are consistent with the sentencing principles in the criminal code. They provide reparations for the harm done to victims and to the community and promote a sense of responsibility in offenders. . . .
[90] Mr. Gougen spoke again on second reading of Bill C-37: House of Commons Debates (Hansard), 41st Parl., 1st Sess., No. 196 (11 December 2012), at 1520. He explained that the inclusion of the surcharge in the Code dates back to 1988. The provisions originally gave judges discretion to waive the surcharge in cases of undue hardship. Amendments to the regime were made in 2000 in response to a report of the Standing Committee on Justice and Human Rights in 1998 entitled “Victims’ Rights — A Voice, not a Veto.” Mr. Gougen stated, at p. 13173:
The government response to that report described the original victim surcharge provisions as having two goals. First was to make each offender accountable in a small way to victims of crime as a group. Second was to generate revenue for victim services.
(Emphasis added)
[91] The Tinker appellants submit that a correct statement of the purpose of the surcharge regime in the Code must account for the fact that Bill C-37 removed judicial discretion to decline to impose the surcharge on offenders in cases of undue hardship and instead made the imposition mandatory. They say that this court must not focus simply on the purposes of imposing the surcharge per se.
[92] In my view, adopting this approach would not alter the conclusion I have reached above regarding the dual objectives of the surcharge regime. The legislative debates that the parties put before this court amply demonstrate that the government saw Bill C-37’s removal of judicial discretion to impose the surcharge as necessary for the regime to achieve its two original purposes more effectively than it had previously. The government appears to have been concerned that the surcharge was waived too frequently on the basis of undue hardship to the offender. The result was that the surcharge provisions were perceived as having fallen short of the government’s initial expectations for them.
[93] For example, the federal Department of Justice provided data from the Canadian Centre for Justice Statistics (Statistics Canada) indicating that, for the fiscal year 2009/2010, the surcharge had been imposed in 13 per cent of cases in Ontario and 29 per cent of the time in British Columbia. The government appears to have seen these rates as too low, making the surcharge regime ineffective at achieving its original purposes, and that perception is what provided the impetus for making the surcharge in the Code mandatory. Indeed, at an October 23, 2012 meeting of the Standing Committee on Justice and Human Rights convened to discuss Bill C-37, the Minister of Justice and Attorney General of Canada, The Honourable Rob Nicholson, stated that the purpose of “removing the option to waive the surcharge” was to “promote a sense of responsibility in offenders for their actions, and to make offenders accountable to the victims whose lives they have affected”: Canada, House of Commons, Standing Committee on Justice and Human Rights, Minutes of Proceedings, 41st, 1st Sess., No. 46 (23 October 2012), at p. 1 (emphasis added).
[94] Thus, Bill C-37’s removal of discretion to waive the surcharge had the same two purposes as creating a mandatory surcharge initially in 1988. Those two purposes were discussed on second reading of the bill that would first introduce the surcharge into the Code by The Honourable Ray Hnatyshyn, Minister of Justice and Attorney General of Canada, stated (House of Commons Debates (Hansard), 33d Parl., 2d Sess., Vol. 9 (19 November 1987), at p. 10973):
The victim fine surcharge is one of the most important features of this Bill. This proposal further recognizes the entitlement of victims of crime to reparation, and the need for offenders to make amends for the wrongs suffered by their victims. The purpose of the victim fine surcharge is to require the offender to provide redress not only for the harm done to the victim but to the community at large. The surcharge will assist offenders in the process of accepting responsibility for their crimes by requiring them to contribute to victim services within each province as part of the debt they owe to society.
(Emphasis added)
[95] I also observe that s. 3(3) of Bill C-37 increased the quantum of the victim surcharge from 15 per cent to 30 per cent of a fine imposed by the court as part of an offender’s sentence and, where no fine is imposed, from $50 to $100 for summary conviction offences and from $100 to $200 for indictable offences. These increases suggest that the surcharge regime as it currently appears in the Code aims to rectify what the government perceived as previous ineffectiveness in achieving the two original purposes of imposing the surcharge.
[96] Like making the surcharges mandatory, increasing their amount, coupled with the procedures for enforcing them in the Fines and Forfeiture provisions of the Code, are the means in Bill C-37 by which those two purposes are advanced. As held above, the effect of these measures is to potentially deprive the appellants of their liberty interests under s. 7 of the Charter. The question is whether the deprivation is fundamentally just.
(b) Overbreadth
[97] The principle of fundamental justice under s. 7 of the Charter that a law must not be overbroad prohibits laws that “[go] too far by denying the rights of some individuals in a way that bears no relation to [the law’s] object”: Carter, at para. 85. It forbids situations where there is an “absence of a connection between the infringement of rights and what the law seeks to achieve — the situation where the law’s deprivation of an individual’s life, liberty, or security of the person is not connected to the purpose of the law”: Bedford, at para. 108. Although a law may deny the rights of some individuals in some cases in a manner that bears a rational connection to the purposes of the law, it is overbroad if it denies the rights of other individuals in some other cases in a manner that has no rational connection to the law’s purposes: Bedford, at paras. 112-113. See also R. v. Michaud (2015), 127 O.R. (3d) 81, [2015] O.J. No. 4540, 2015 ONCA 585, at para. 70, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 450.
[98] The Tinker appellants submit that s. 737 of the Code is overbroad both in relation to them and in reasonable hypothetical cases. I accept that this court may undertake a s. 7 overbreadth inquiry by examining hypothetical cases of an impugned law’s application: see R. v. Appulonappa, [2015] 3 S.C.R. 754, [2015] S.C.J. No. 59, 2015 SCC 59, at para. 28.
[99] The Tinker appellants submit that this court should consider the effect of the surcharge on the offender at issue in the Michael decision. Mr. Michael was a 26-year-old Inuit man who was convicted of nine summary conviction offences, including theft, public mischief, breach of probation and assaulting a police officer. He was subject to a $900 surcharge. At the time of sentencing, he was addicted to drugs and alcohol, was unemployed and was homeless. He received social assistance of $250 a month. He had no possessions. His family had a history of alcohol abuse and he was estranged from them at an early age. He dropped out of school in Grade 10. He lost his ability to speak Inuktitut and all connection with his Aboriginal community. The sentencing judge found that Mr. Michael could not and likely would not ever be able to pay the surcharge.
[100] In my view, the effect of s. 737 of the Code is ultimately the same for the liberty interests of the Tinker appellants and for Mr. Michael. Each of these offenders could be compelled to appear in court at a committal hearing pursuant to s. 734.7 of the Code using the methods in Parts XVI and XVIII of the Code, such as an arrest warrant or a summons to appear. Is the deprivation of liberty overbroad for any of them?
[101] I am unable to conclude that the deprivation bears no rational connection at all to the purposes of imposing the victim surcharge on them under s. 737 of the Code. A law that is overbroad operates arbitrarily in the cases where it overreaches: Michaud, at para. 70. The key question is whether there are any cases in which there would be no connection at all between the law’s means and ends. “This standard is not easily met”: Bedford, at para. 119.
[102] There is at least some rational connection between compelling even impecunious offenders, such the Tinker appellants or Mr. Michael, to appear at a committal hearing and the purposes of the surcharge regime outlined earlier. At the hearing, the Crown must demonstrate that the offender refused to pay the surcharge without reasonable excuse. The court must inquire into whether the offender has the means to pay, and the offender may offer evidence in his or her defence of an inability to pay as constituting a reasonable excuse.
[103] This process is rational in light of the objectives of the surcharges provisions. First, it was rational for Parliament to conclude that through that process it could be determined whether an offender has the funds available for the provinces to use to put towards victim services. Compelling the offender to appear at the hearing to ascertain his or her financial circumstances is necessary for this determination. Second, through the process of a committal hearing offenders who have defaulted on paying a surcharge are called to account to the community for why they have refused to pay, and they are asked to explain why they refused. Calling them to account in this fashion, in the open and public forum of the court, and inquiring into their excuse for refusing to pay acts as a reminder of the offender’s accountability to victims of crime.
[104] The Tinker appellants submit that imposing the surcharge on an indigent from whom the fine can never be collected bears no relation the objective of raising public revenue to put towards victim services. However, this submission overlooks the actual engagement of s. 7 interests in question here. The appellants’ liberty is engaged by the process of a committal hearing under s. 734.7 of the Code. The end result of a committal hearing is not to collect on an outstanding surcharge payment but to determine whether a warrant for the defaulting offender’s committal should be issued by inquiring into the offender’s excuse for refusing to pay. The process thus understood is rationally connected to the objective of raising funds for victim services.
[105] In any event, even if funds cannot be collected from an impecunious offender who is compelled to appear at the committal hearing, requiring him or her to appear in open court at such a hearing is rationally connected to instilling a sense of responsibility or accountability in the offender for the harms he or she caused to victims and to the community.
[106] I therefore conclude that s. 737 of the Code does not deprive the Tinker appellants or Mr. Michael of liberty in an overbroad fashion.
(c) Gross disproportionality
[107] The principle of fundamental justice that a law must not be grossly disproportionate prohibits laws whose effects on s. 7 interests, although rationally connected to the law’s objective, are so severe or serious as to be “totally out of sync with the objective of the measure” and “cannot rationally be supported”: Bedford, at para. 120. It describes “legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest”: Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, at para. 133. The inquiry into gross disproportionality under s. 7 of the Charter balances the negative effects on an individual against the purpose of the law, not the “societal benefit that might flow from the law”: Bedford, at para. 121.
[108] In Carter, at para. 89, the Supreme Court stated: “The standard is high: the law’s object and its impact may be incommensurate without reaching the standard for gross disproportionality” (emphasis in original).
[109] More recently, this court applied the principle of gross disproportionality under s. 7 of the Charter in Thompson v. Ontario (Attorney General) (2016), 134 O.R. (3d) 255, [2016] O.J. No. 4801, 2016 ONCA 676, 352 O.A.C. 336. At issue were provisions of the Mental Health Act, R.S.O. 1990, c. M.7, that permitted a person who met the criteria for involuntary committal to be ordered to undergo a comprehensive plan of treatment in the community rather than being detained in a mental health facility. It was conceded that the statutory regime infringed the liberty and security of the person interests of those to whom it applied. But this court held that it did not do so in a grossly disproportionate manner.
[110] Sharpe J.A. acknowledged the findings of the application judge that community treatment orders reduced the incidence of homelessness, violence and criminal conduct among persons subject to them. They also allowed those who did not recognize the need for treatment to maintain a connection with mental health services, and they were individualized and tailored to the mentally ill person’s circumstances. Sharpe J.A. held at para. 45: “Given the individually tailored nature of the legislative regime and the significance of the public health objectives, it cannot be said that the legislative response to the public health problem is extreme, let alone so extreme as to be grossly disproportionate.”
[111] Following the Supreme Court’s comments in Carter and this court’s reasons in Thompson, in the present case this court must measure the severity of the deprivation of the Tinker appellants’ liberty against the “importance” or “significance” of the purposes of the surcharge provisions to determine whether that deprivation is so extreme that it cannot be rationally supported.
[112] I consider first the severity of the deprivation of liberty.
[113] The appellants, and hypothetical offenders in similar circumstances, may be compelled to appear at a s. 734.7 committal hearing upon default of paying the surcharge. At the most severe level, there is potential for them to be arrested without a warrant by a peace officer and detained pending committal proceedings under s. 495(1) of the Code. If they do not meet the conditions for release in s. 497, the duration of the detention may vary based on the length of time it takes for the proceeding to conclude.
[114] Having said this, not all deprivations of liberty are of the same order of magnitude. In my view, a requirement that an offender appear in court to answer an allegation that he or she has refused to make a surcharge payment without a reasonable excuse must be construed as a less severe deprivation of liberty than, for example, being sentenced to a term of incarceration or being unable to make fundamental personal choices concerning one’s body and health. By comparison to these other deprivations, it is closer to the less serious end of the spectrum of severity.
[115] I turn secondly to the importance or significance of the purposes of the surcharge regime in the Code.
[116] Few would deny that raising funds to support victims of crime is an important objective for the regime to pursue. This objective bears some similarity to that which underlies s. 738(1) of the Code, which empowers a court to order an offender to pay restitution to a victim of the offender’s crime. When considering the predecessor to s. 738(1) in R. v. Zelensky, [1978] 2 S.C.R. 940, [1978] S.C.J. No. 48, at pp. 952-53 S.C.R., Laskin C.J.C. cited the following passage from a report of the Law Reform Commission of Canada to illustrate the importance of restitution orders:
Recognition of the victim’s needs underlines at the same time the larger social interest inherent in the individual victim’s loss. Thus, social values are reaffirmed through restitution to victim. Society gains from restitution in other ways as well. To the extent that restitution works toward self-correction, and prevents or at least discourages the offender’s committal to a life of crime, the community enjoys a measure of protection, security and savings. Depriving offenders of the fruits of their crimes or ensuring that offenders assist in compensating victims for their losses should assist in discouraging criminal activity. Finally, to the extent that restitution encourages society to perceive crime in a more realistic way, as a form of social interaction, it should lead to more productive responses not only by Parliament, the courts, police and correctional officials but also by ordinary citizens and potential victims.
The victim surcharge under s. 737 of the Code of course differs from restitution orders under s. 738(1) in that funds collected from the surcharge are put into provincial services designed to benefit victims of fine generally, whereas restitution orders require an offender to make a payment to the specific victim of his or her own offence: see R. v. Crowell, [1992] N.S.J. No. 380, 76 C.C.C. (3d) 413 (C.A.), at p. 418 C.C.C.; and R. c. Cloud, [2016] J.Q. no 2819, 2016 QCCA 567, 340 C.C.C. (3d) 547, at para. 48. Nonetheless, in my view the comments cited by Lamer C.J.C. in Zelensky also serve to illustrate the importance of the goal pursued by the victim surcharge.
[117] Equally important is the second purpose of the surcharge regime — to enhance the accountability of offenders to victims and to the community. I note that the principles and purposes of sentencing set out in s. 718 of the Code include the objective of instilling “a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community”.
[118] Comparing the severity of the deprivation of liberty created by s. 737 of the Code to the importance of the purpose of the surcharge provisions, I conclude that the deprivation is not grossly disproportionate contrary to the principles of fundamental justice under s. 7 of the Charter. The potential for the appellants to be arrested and compelled to appear at a committal hearing, which is a deprivation of relatively minimal seriousness, is rationally supportable in light of the high importance of the objectives of the surcharge provisions. The severity of these effects is not so totally out of sync with these objectives that Parliament is culpable for a failure of rationality.
[119] This is not a case like PHS. In that case, the Supreme Court held that the Minister of Health’s failure to grant an exemption from drug possession offences to clients of a safe-injection site was grossly disproportionate to the state objective of taking a uniform stance on the prohibition of drug possession. Refusing the exemption exposed the clients to life-threatening medical dangers, and the safe-injection site “save[d] lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation”: para. 133. In the present case, the deprivation of liberty faced by the appellants by potentially being compelled to appear at a s. 734.7 committal hearing is not as severe as the s. 7 deprivations faced by the clients in PHS, while the significance of the objectives of the surcharge is arguably higher than the state objective in question in PHS.
[120] Finally, I will comment on an issue raised by the parties and grappled with by the courts below before turning to s. 12 of the Charter. The above conclusion that the surcharge provisions in the Code are not grossly disproportionate under s. 7 of the Charter does not necessitate any conclusion about whether they are grossly disproportionate under s. 12. I acknowledge that ss. 7 and 12 must be read consistently with each other so as not to render either of their constitutional protections redundant: R. v. Lloyd, [2016] 1 S.C.R. 130, [2016] S.C.J. No. 13, 2016 SCC 13, at para. 41. Specifically, the standard of proportionality under s. 7 cannot be construed as any lesser than the standard under s. 12: see R. v. Malmo-Levine, [2003] 2 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, at para. 160; and Safarzadeh-Markhali, at para. 72.
[121] However, the gross disproportionality analysis under each guarantee is distinct. The analysis under s. 7 assesses the relationship between an impugned law’s means and its ends to determine whether the legislature is guilty of a failure of instrumental rationality, in that the law is not a rational means to achieve its objective and so is dysfunctional in terms of its own objective: Bedford, at para. 107. By contrast, as explained below, the analysis under s. 12 assesses the relationship between actual state treatment of an individual and what would be appropriate treatment. It looks at whether the extent of the departure from what would be appropriate is abhorrent, intolerable or outrageous.
[122] In my view, these analyses are sufficiently distinct to justify addressing s. 12 notwithstanding my conclusion on s. 7 above.
(4) Section 12 of the Charter
[123] Section 12 of the Charter provides:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[124] Many of the appellants’ submissions before the courts below and on appeal are devoted to the issue of whether the surcharge imposed under s. 737 of the Code constitutes “punishment” under s. 12 of the Charter. The Crown takes the position that this is a non-issue, as the actions of the state in relation to an offender who does not pay the surcharge clearly constitute “treatment” under s. 12.
[125] I assume for the purposes of this appeal that the imposition of the surcharge and the measures available to enforce payment amount to treatment. It is unnecessary to determine whether the surcharge amounts to punishment under s. 12 or whether the test for punishment under s. 11(i) of the Charter developed by the Supreme Court in R. v. J. (K.R.), [2016] 1 S.C.R. 906, [2016] S.C.J. No. 31, 2016 SCC 31, at para. 41, also applies in the s. 12 context. In Rodriguez, at p. 611 S.C.R., the Supreme Court held that the criminal prohibition on medical assistance in dying did not constitute treatment under s. 12, but made the following helpful comment about the standard to be met:
There must be some more active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute “treatment” under s. 12.
(Emphasis added)
The imposition of the victim surcharge on the appellants by the courts below, as mandated by s. 737(1) of the Code, arguably involved “an exercise of state control over the individual”. As incarceration is a possibility where an offender fails to pay the surcharge without reasonable excuse, and an offender may be compelled to attend court to explain why he has not paid. This court has noted that the same test for an infringement of s. 12 of the Charter applicable with respect to punishment is also applicable with respect to treatment: R. v. Olson (1987), 62 O.R. (2d) 321, [1987] O.J. No. 855 (C.A.), at p. 336 O.R., affd [1989] 1 S.C.R. 296, [1989] S.C.J. No. 7; and R. v. Dyck (2008), 90 O.R. (3d) 409, [2008] O.J. No. 1567, 2008 ONCA 309, at para. 85. I turn to this test next.
(i) The test for infringement
[126] The test for whether treatment is cruel and unusual under s. 12 asks whether it is grossly disproportionate to what would be appropriate treatment. This is a “high bar,” as the treatment must be “more than merely excessive”: Lloyd, at para. 24. See also R. v. Smith, [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, at p. 1072 S.C.R. Treatment is cruel and unusual if it is “so excessive as to outrage standards of decency”, such that Canadians would find it “abhorrent or intolerable”: R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, at para. 14.
[127] The Supreme Court has developed an analytical framework for assessing the constitutionality of mandatory minimum imprisonment sentences under s. 12. Given that the surcharge under s. 737 of the Code differs from a mandatory prison sentence only in that it more closely resembles a mandatory minimum fine, in my view that framework is the correct one to apply in the case at hand.
[128] First, the court must determine what would be a proportionate sentence for the appellants in this case, having regard to the nature of the appellants’ offences and the circumstances of the offender. Second, the court must determine whether the imposition of the surcharge under s. 737 is so grossly disproportionate to a fit and proportionate sentence that Canadians would find it abhorrent, intolerable and outrageous to standards of decency: see R. v. Nur, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, 2015 SCC 15, at para. 46; and Lloyd, at para. 23.
[129] In assessing whether the surcharge is grossly disproportionate, this court must examine not only the impact of the surcharge on the appellants, but also the impact of the surcharge upon others within the “reasonably foreseeable reach of the law”: Nur, at para. 63. The Tinker appellants, Mr. Eckstein and Mr. Larocque submit that this court should consider the surcharge’s impact on the offender at issue in Michael in addition to the impact on them. I accept this submission.
[130] The gross disproportionality analysis under s. 12 is concerned primarily with the effects of the surcharge on the appellants and on Mr. Michael: Smith, at p. 1072 S.C.R. Other factors which may inform the analysis are whether the treatment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles and whether there exist valid alternatives to the treatment imposed: R. v. Goltz, [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, at p. 500 S.C.R.
(ii) Application of the test
[131] I will first consider what would be a proportionate sentence for the appellants and for Mr. Michael, having regard to their individual circumstances and the nature of their offences.
[132] The sentencing judge in Tinker regarded the imposition of the surcharge as inappropriate in light of the nature of the Tinker appellants’ offences and their circumstances. He would not have imposed the surcharge if he was not required to do so by s. 737 of the Code. I am prepared to assume that the same would also be true of Mr. Larocque and the hypothetical offender Mr. Michael. These offenders are impecunious, as well as being physically or mentally disabled, unemployed, addicted to substances and homeless. Some of their convictions are for relatively minor offences such as breach of probation or mischief. A proportionate sentence would not have included a surcharge that a sentencing judge concluded would cause undue hardship.
[133] This conclusion is reinforced by s. 734(2) of the Code, which provides:
734(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.
(Emphasis added)
Under this provision, the party seeking to have a fine imposed on an offender at sentencing, usually the Crown, has the burden to satisfy the court on a balance of probabilities that the offender is able to pay the fine. The opposing party may tender evidence of the offender’s inability to pay: see R. v. Topp, [2011] 3 S.C.R. 119, [2011] S.C.J. No. 43, 2011 SCC 43, at paras. 21-24; Wu, at para. 47; and R. v. Mahmood, [2016] O.J. No. 3259, 2016 ONCA 75, at para. 22.
[134] I find it unlikely that in this case the Crown would have been able to establish that the Tinker appellants, Mr. Larocque or Mr. Michael would have the means to pay a fine. Assuming that the surcharge can be analogized to a fine imposed at the time of sentencing, it would be disproportionate for it to be imposed on these offenders when following the generally accepted sentencing principles governing fines codified in s. 734(2) of the Code. To impose the surcharge on a mandatory basis at sentencing irrespective of the offender’s means to pay is to depart from these principles.
[135] Next, I will consider whether the imposition of the surcharge on the impecunious appellants and Mr. Michael, calculated at $100 for each summary conviction offence and $200 for each indictable offence they were convicted of, is grossly disproportionate. This amounted to $200 for Mr. Tinker, Ms. Judge and Mr. Bondoc, $300 for Mr. Meade, $700 for Mr. Larocque and $900 for Mr. Michael.
[136] The Tinker appellants submit that, with the imposition of the surcharge, the offenders at issue here are subject to the stress of an unpaid fine hanging over their heads when they do not have and will never be able to acquire the means to pay it. They also submit that the offenders are subject to the ongoing stigma of criminalization stemming from their inability to discharge the debt obligation imposed during their sentencing. I accept these submissions, but I reiterate that stress, anxiety and stigma the offenders face are not of such a degree of severity that would engage psychological security of the person under s. 7 of the Charter.
[137] However, I do not accept the submission made by the Tinker appellants and Mr. Eckstein that the effect of an unpaid surcharge is to prevent the rehabilitation and reintegration of the offenders at issue into society and to force them to choose between paying the surcharge and paying for the necessaries of life. The offenders can obtain extensions of time to pay without going through an arduous process. They must be given extensions that are reasonable in the circumstances because they are unable to pay the surcharge. They cannot be imprisoned for refusing to pay, as their indigence is a reasonable excuse. Civil proceedings to collect the surcharge are not available. These facts attenuate the negative effects of the mandatory surcharge on the offenders.
[138] The Tinker appellants submit that the ability to obtain an extension of time to pay does not ameliorate the negative effects of the mandatory surcharge. However, this submission is inconsistent with this court’s decision in Pham. The appellants in Pham were found guilty of possessing 1,200 kilograms of contraband tobacco and were sentenced to a mandatory minimum fine under the Excise Act. The quantum was $0.11 multiplied by the number of grams of contraband tobacco possessed, which was calculated to be $154,000. They challenged the fine as being grossly disproportionate under s. 12 of the Charter.
[139] This court rejected the challenge, noting that three other provincial appellate courts had rejected the same challenge: see R. c. Zachary, [1996] J.Q. no 2970, 3 C.R. (5th) 96 (C.A.); R. v. Desjardins (1996), 182 N.B.R. (3d) 321 (C.A.); and R. v. MacFarlane, [1997] P.E.I.J. No. 116, 121 C.C.C. (3d) 211 (C.A.). Goudge J.A. stated at para. 17 that in the s. 12 analysis the impact of the “very substantial financial liability for the appellants” was “attenuated by their right under s. 734.3 of the Criminal Code to apply for an extension of time beyond the two-year period imposed by the trial judge”. He added that the impact was further attenuated by s. 745.7 of the Code “by permitting a warrant for committal to be issued only where the offender has refused to pay the fine without reasonable excuse”.
[140] The fine at issue in Pham was much larger than the amounts of the surcharge at issue in the case at hand. Admittedly, the decision is partly distinguishable. Goudge J.A. wrote at para. 19 that the minimum fine in the Excise Act was not grossly disproportionate because the amount of the fine was proportionate to the amount of contraband possessed by an offender:
In my view, however, the most important consideration in the s. 12 analysis is the direct connection between the quantity of the illegal substance possessed and the size of the fine. Those who possess larger quantities are clearly players in larger criminal enterprises with larger illegal profits for whom larger minimum fines are rationally founded. The use of this factor, which is both objective and reasonable, to regulate the size of the minimum fine ensures that the punishment will not be grossly disproportionate.
The surcharge provisions in the Code, by contrast, do not exhibit the same kind of tailored proportionality, as the quantum of the surcharge is not proportionate to the gravity of the crimes committed by the offenders, except to the limited extent of distinguishing between indictable and summary conviction offences. The surcharge is, however, proportionate to the number of the offender’s convictions.
[141] There are clearly valid alternatives to the imposition of the surcharge on the offenders on question. One such alternative, which had been in place between 1988 and 2013 before the introduction of Bill C-37, was to give sentencing judges discretion to waive the surcharge if imposing it would cause an offender undue hardship.
[142] Having said that, I would reiterate that the mandatory imposition of the surcharge does go some way towards achieving the valid penal purpose of holding offenders accountable to victims of crime and the community. As well, although it departs from the recognized sentencing principle that a fine should be imposed on an offender at sentencing only if the offender has the means to pay it, it is nonetheless founded on the separate recognized sentencing principle codified in s. 718(f) of the Code of inculcating “a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community”.
[143] I conclude that, given the attenuated effects of the mandatory surcharge in s. 737 of the Code on the offenders under consideration here and the surcharge regime’s pursuit of valid sentencing objectives, the surcharge is not grossly disproportionate to what would be a proportionate sentence for these offenders. I accept that it is disproportionate, but I cannot go so far as to conclude that it meets the high standard of being so excessive as to be abhorrent, intolerable or outrageous to Canadians’ sense of decency.
[144] The frustration of sentencing judges who have balked at the seeming futility of imposing victim fine surcharges that are beyond the means of an offender in the foreseeable future is understandable, but the surcharge regime does not amount to a violation of s. 7 or s. 12 of the Charter.
[145] For the foregoing reasons, I would dismiss the appeals.
Appeals dismissed.