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SENTENCING - Particular sanctions - Victim fine surcharge - Procedure - Jurisdiction to impose sentence - Appeals

Wednesday, July 19, 2017 @ 9:14 AM  

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Appeal by six offenders from sentencing decisions affirming the constitutionality of the mandatory victim surcharge regime. In 2013, s. 737(1) of the Criminal Code was amended to provide for the mandatory imposition of a victim surcharge in connection with sentencing. Prior to the amendment, a sentencing judge had discretion to exempt an offender from the surcharge where its imposition would cause undue hardship. The Code provided for a committal hearing process in the event of default of payment. The appellants were marginalized individuals due to mental and/or physical health, addiction, poverty, and/or immigration status. They received modest sentences for summary conviction offences. In respect of five of the six appellants, a summary conviction appeal court judge overturned a ruling finding the mandatory surcharge unconstitutional. In the case of the other appellant, the sentencing judge applied the summary conviction appeal court constitutionality ruling in imposing the surcharge. The appellants appealed. They submitted the mandatory nature of the surcharge violated their rights protected by ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (Charter).

HELD: Appeal dismissed. The possibility of being compelled to appear at a hearing was an exercise of the state's coercive power that engaged the liberty aspect of s. 7 of the Charter. The stress of being unable to pay the surcharge did not rise to the level of a deprivation of psychological security of the person under s. 7. The mandatory imposition of the surcharge under s. 737 did not force a choice between payment and obtaining the necessaries of life. Nor did it prevent the appellants' rehabilitation or reintegration. The deprivation of liberty arising under s. 737 accorded with principles of fundamental justice. The removal of judicial discretion was intended to have the surcharge regime obtain its original legislative purposes of responsibility and accountability more effectively. The deprivation of liberty arising from the process compelling an impecunious offender to appear for non-payment was rationally connected to the legislative objectives and was not grossly disproportionate. In addition, the imposition of the surcharge on the impecunious appellants did not constitute cruel and unusual treatment contrary to s. 12 of the Charter. The process to obtain an extension of time for payment was not arduous. Non-payment did not result in incarceration, as indigence was a reasonable excuse for non-payment under the regime. The mandatory imposition of the surcharge was not disproportionate to a valid sentence, and proportionately reflected the valid penal purpose of holding offenders accountable to victims of crime and the community. No breach of s. 7 or s. 12 of the Charter was established.

R. v. Tinker, [2017] O.J. No. 3435, Ontario Court of Appeal, P.S. Rouleau, K.M. van Rensburg and G.I. Pardu JJ.A., June 30, 2017. Digest No. TLD-July172017006