Aug 15, 2014

Victim Fine Surcharges: Follow the Bouncing Ball

R. v. Javier, 2014 ONCJ 361 (CanLII)

An Ottawa judge has ruled the contentious victim fine surcharge constitutional. Another judge in the same court had earlier found the Criminal Code section violates the Charter of Rights and Freedoms section against cruel and unusual punishment.

R. v. Javier, 2014 ONCJ 361 (CanLII) was released Aug. 6. Represented by duty counsel, the defendant asked the Ottawa Ontario Court of Justice last week to waive the mandatory victim surcharge under s. 737 of the Criminal Code. Counsel referred to another recent decision in the same court – R. v. Michael 2014 ONCJ 360 (CanLII), 2014 ONCJ 360 (CanLII) – and the earlier R. v. Tinker [2014] O.J. 2056 (O.C.J.). Each had declared the victim surcharge provisions under s. 737 to be of no force and effect, although Tinker had been overturned on appeal.

In R. v. Michael the court found that the imposition of the mandatory victim surcharge constituted cruel and unusual punishment contrary to s. 12 of the Charter.

The defendant in Javier had pleaded guilty to one count of possession of crack cocaine. Justice Robert Wadden determined that an appropriate sentence was one day jail in addition to presentence custody.

He found:

"In my view, s. 737 of the Code is valid legislation and I am obliged to impose the victim surcharge. For the truly impecunious, there is no risk of being sent to jail as a result of not paying the surcharge, as a court cannot issue a warrant of committal for non-payment if the offender is truly unable to pay, pursuant to s. 734.7(1)(b)(ii) of the Code. Although the financial stress of paying the victim surcharge may be onerous for some offenders I am not persuaded that it is cruel and unusual punishment that would result in a declaration of the invalidity of this legislation. Justice Wadden found that “it is debatable” whether the surcharge is a punishment or an “ancillary order,” akin to a firearms prohibition.

The justice noted that Section 737 of the Code requires a court to impose a victim surcharge “in addition to any other punishment imposed,” in the amount of 30% of any fine imposed, or $100 for each summary conviction offence. In the Michael case, that would have amounted to a $900 surcharge, as the defendant was convicted of separate, summary conviction offences."

While Justice Paciocco in Michael could have imposed a fine of $1 on each count, he conducted the required hypothetical analysis. Justice Paciocco concluded that a judge who was required to sentence an offender on multiple counts to both jail and probation in the hypothetical would be prevented from imposing a fine.

Flexibility is possible, Justice Wadden found:

"In considering the Michael hypothetical, it is my view that it would be within the power of the sentencing judge to adjust the individual sentences on the multiple offences to allow the judge to impose fines in addition to other penalties imposed. Indeed, it is arguable that with many counts to consider there are more options available to the trial judge to allocate presentence custody, jail and probation among the various offences so that no single count contains more than one element of jail or probation, yet the total sentence is fair, proportional and meets all the sentencing requirements."

Justice Wadden noted that the case before him was not “thoroughly litigated” and that his reasons apply only to Javier case.

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