Mandatory Victim Surcharges and s. 7 of the Charter

I. INTRODUCTION

In 2013, the Harper administration introduced the Increasing Offenders’ Accountability for Victims Act, also known as Bill C-37.¹ The effect of this Act was to amend s. 737 of the Criminal Code,² thereby subjecting all individuals convicted of an offence under the Criminal Code or the Controlled Drugs and Substances Act³ to a mandatory “victim surcharge.”⁴ Prior to the passage of Bill C-37, judges had discretion in applying the surcharge, exempting offenders if it was established that undue hardship would result from paying the fine.⁵

This amendment to the Criminal Code also increased the fine from $50 to $100 for summary convictions, from $100 to $200 for indictments, and from 15 per cent to 30 per cent of any fine imposed on the offender for the offence.⁶ Judges no longer had discretion to reduce the surcharge amount.⁷ However, judges were permitted to extend the timeframe in which an offender may pay the charge if they are suffering from financial hardship.⁸ If an offender defaulted on payment, the province could refuse to issue or renew, or could suspend the driver’s license, permit or other instrument until the surcharge is paid in full.⁹ Further, a term of imprisonment could be imposed on offenders who have the means to pay the surcharge but voluntarily default.¹⁰ However, an offender who lacks the means to pay could plead their case for an extension at a committee hearing.¹¹

The constitutionality of the mandatory victim surcharge was at issue in R v. Boudreault,¹² a 2018 Supreme Court of Canada (“SCC”) decision. The SCC ruled that the mandatory victim surcharge infringed the right to be free from cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms¹³ and was not saved by s. 1.¹⁴ However, the appellants also alleged that the mandatory victim surcharge violated their s. 7 Charter rights, although the SCC did not deal with this issue as they had already concluded that it violated s. 12.¹⁵ This blog will consider whether the mandatory victim surcharge also violated the appellants’ s. 7 rights.

II. R v BOUDREAULT: FACTS AND HISTORY

In Boudreault SCC, the Supreme Court jointly heard and decided four separate appeals involving seven individual appellants.¹⁶ Each appellant was socially marginalized, suffering variously from mental and physical disabilities, poverty, substance abuse, and unemployment.¹⁷ For example, Kelly Judge is a 53-year-old woman who is a legally blind recovering alcoholic who suffers from depression and bi-polar disorder.¹⁸ Her income is $831 a month from Canadian Pension Plan Disability Benefits.¹⁹ Ms. Judge’s monthly rent is $800, therefore leaving her $31 left over for all of her necessities once rent is paid.²⁰ She was convicted of assault and uttering threats and sentenced to a suspended sentence, probation and a victim surcharge of $200.²¹

Three of the four appeals heard in Boudreault SCC originated in Ontario²² with one from Quebec.²³ Five of the appellants had argued in two separate cases before the Ontario Court of Justice that the mandatory surcharge violated their s. 7 Charter rights.²⁴ Section 7 provides that the state not interfere with an individual’s right to life, liberty and security of the person, except in accordance with the principles of fundamental justice.²⁵ While in R. c. Larocque the s. 7 argument was rejected,²⁶ in R. v. Tinker Justice Beninger held that the mandatory victim surcharge negatively impacts the security of the person.²⁷ Security of the person is negatively impacted because if the victim surcharge is not paid on time, the individual in default is subject to a jail sentence. The Court rejected the argument that the individual’s ability to obtain an extension was “a proceeding which enhances the criminal justice system” since it targets an individual who has no ability to pay.²⁸ As per the Legislative Summary of Bill C-37, Beninger J. found that the purpose of the amendment was to “increase offenders’ accountability to victims of crime.”²⁹ The Court went on to find the amendment to be overbroad, arbitrary, and grossly disproportionate,³⁰ declaring the requirement for a mandatory surcharge to be of no force and effect³¹ after concluding the Charter infringement could not be saved under s. 1.³² The Ontario Superior Court of Justice, however, overturned this decision, deeming the mandatory surcharge to be constitutionally valid.³³

III. R. v. TINKER: AN ANALYSIS OF THE ONTARIO COURT OF APPEAL’S DECISION

When Tinker was considered at the Ontario Court of Appeal, four appellants again argued that the provision violated their s. 7 Charter rights, as well as their s. 12 and s. 15 rights.³⁴ Justice Pardu, writing for the Court, accepted that the provision could deprive an individual of their liberty because the provision “permits an offender who defaults on a surcharge to be potentially arrested or summoned to appear at a committal hearing.”³⁵ However, the Court did not accept that the surcharge violated an individual’s security to person.³⁶ Pardu J.A. declared that the state’s conduct did not reach this threshold and likened the potential debt to that which many Canadians are burdened with as a result of non-criminal activity.³⁷

The Court deemed that there were two main purposes of the provision: first, to hold offenders accountable to victims of crimes and second, to rectify harm done by raising funds for victim services.³⁸ Pardu J.A. stated that a “law that is overbroad operates arbitrarily in the cases where it overreaches” and that this is not the case for this provision.³⁹

The issue with Pardu J.A.’s position is that the law is rational in part but overreaches and captures conduct that bears no relation to the objective. For example, when an individual is convicted of possessing a gram of cocaine, there is arguably no victim to this crime and, therefore, no harm caused. As one of the stated purposes is to make offenders accountable to their victims, there is no rational connection in this case. Further, there is again arguably no harm done by said criminal activity, and thus there is no rational connection to raising funds for victim services. This same logic could be applied to an individual missing a court date or violating probation. The individual will be subject to the mandatory surcharge despite there being no victim to the said crime. There is no need to raise funds to assist victims if there are no victims, or to hold these individuals “accountable” to society. On this basis, the law is overbroad as it catches individuals who do not fit within the purpose of the provision.

The Court also rejected the argument that the provision is “grossly disproportionate.”⁴⁰ The Court’s analysis considered the negative effects on an individual against the purpose of the law.⁴¹ There are two effects of this provision which suggest gross disproportionality. First, the fine burdens many offenders with debt that they are unlikely to ever pay off. Second, and more severe, is that the offender cannot apply for a record suspension until the victim surcharge is paid in full.⁴² This effectively prevents the offender from re-integrating into society as the prospects of finding employment with a criminal record are greatly reduced. Certainly, it will be extremely difficult for Ms. Judge to pay off $200 in fines with a mere $31 of disposable income per month. Pardu J.A. stated that the provision does not force offenders to choose between paying a surcharge and paying for necessities.⁴³ However, if Ms. Judge wishes to apply to have her record cleared, this cannot be said to be true. Further, the burden this places on the administrative system, such as warrants being issued and repetitive committal hearings, has the potential to be substantial. The provision’s effects are grossly disproportionate to the purposes of the provision.

IV. CONCLUSION

Regardless of intention, the practical effect of Bill C-37 was to further marginalize vulnerable members of society by burdening them with debt that they do not have the means to pay. This did not fulfill the intended purpose and has resulted in marginalized individuals becoming subject to an insidious cycle of being stuck in the criminal justice system. The motivation for the amendment was that the discretionary victim surcharge was only being applied to 13 per cent of offenders in some jurisdictions and Parliament did not believe this to be sufficient.⁴⁴ The counter argument is that the surcharge was only applied to those who had the means to pay it. This is the approach that should be taken today. In recent years, Canada’s criminal justice system has shifted towards a rehabilitative and re-integrative approach. However, the mandatory victim surcharge did exactly the opposite. The SCC has ruled this amendment to be unconstitutional, which will hopefully result in a reversion to past practice of the judge hearing the case having discretion to decide whether to implement the victim surcharge. One can only hope that Parliament does not decide to introduce an amendment which once again violates guaranteed Charter rights. However, if this does occur, it will once again be the legal community’s responsibility to challenge harmful and unnecessary provisions and up to Canadians to voice their displeasure.

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* JD Candidate (2020).

¹ R v Tinker, 2017 ONCA 552 at para 5, 136 OR (3d) 718 [Tinker ONCA].

² RSC 1985, c C-46, s 737.

³ SC 1996, c 19.

⁴ Tinker ONCA, supra note 1 at para 4.

⁵ Ibid at para 5.

⁶ Ibid at para 95.

⁷ R v Tinker, 2014 ONCJ 208 at para 13, 120 OR (3d) 791 [Tinker ONCJ].

⁸ Tinker ONCA, supra note 1 at para 10.

⁹ Ibid at para 11.

¹⁰ Ibid at paras 12-13.

¹¹ Ibid at para 1.

¹² R v Boudreault, 2018 SCC 58 at para 4, 429 DLR (4th) 583 [Boudreault SCC].

¹³ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),

1982, c 11 [Charter].

¹⁴ Boudreault SCC, supra note 12 at para 4.

¹⁵ Ibid.

¹⁶ Ibid at para 12.

¹⁷ Ibid at paras 15, 21-24, 26, 28.

¹⁸ Ibid at para 22.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Ibid.

²² Tinker, supra note 7; R c Larocque, 2014 ONCJ 428, rev’d 2015 ONSC 5407

[Larocque]; R v Eckstein, 2015 ONCJ 222 [Eckstein].

²³ R c Boudreault, 2015 QCCQ 8504 [Boudreault QCCJ].

²⁴ Tinker ONCJ, supra note 7 at paras 1, 17; Larocque supra note 22 at para 1. By contrast, s. 7 arguments were not raised in Eckstein (supra note 22) nor in Boudreault QCCJ (supra note 23).

²⁵ Charter, supra note 13, s 7.

²⁶ Supra note 22 at para 14.

²⁷ Supra note 7 at para 19.

²⁸ Ibid at para 20.

²⁹ Ibid at para 30.

³⁰ Ibid at para 33.

³¹ Ibid at para 43.

³² Ibid at para 39.

³³ R v Tinker, 2015 ONSC 2284 at para 45, 20 CR (7th) 174.

³⁴ Tinker ONCA, supra note 1 at para 42. The Ontario Court of Appeal also heard the appeals from Eckstein (supra note 22) and Larocque (supra note 22) at the same time, but neither of these appellants raised the s. 7 argument (Tinker ONCA, supra note 1 at para 42).

³⁵ Tinker ONCA, supra note 1 at para 70.

³⁶ Ibid at para 72.

³⁷ Ibid at para 78.

³⁸ Ibid at para 86.

³⁹ Ibid at para 101.

⁴⁰ Ibid at para 118.

⁴¹ Ibid at para 107.

⁴² R v Michael, 2014 ONCJ 360 at para 60, 121 OR (3d) 244.

⁴³ Tinker ONCA, supra note 1 at para 137.

⁴⁴ Ibid at para 93.