Top court strikes down mandatory victim surcharge for imposing cruel and unusual punishment on poor

The Supreme Court has 7-2 struck down the mandatory victim surcharge enacted by the former Conservative government because it inflicts cruel and unusual punishment on impecunious offenders.

In allowing Dec. 14 four defence appeals from Ontario and Quebec Court of Appeal judgments which upheld the mandatory surcharge’s constitutionality, Justice Sheilah Martin declared invalid s. 737 of the Criminal Code with immediate effect: R. v. Boudreault 2018 SCC 58.

The court’s judgment eliminates the imposition of all mandatory victim surcharges going forward — whatever the offenders’ income level. It will not, however, automatically grant a remedy to offenders whose mandatory surcharge sentences are still in the court system, nor to those who are no longer in the court system and cannot now appeal their sentences. Justice Martin suggested a variety of possible remedies exist such as “offenders may be able to seek relief in the courts, notably by recourse to s. 24(1) of the Charter. The government could also proceed administratively,” she said, “while Parliament may act to bring a modified and Charter-compliant version of the surcharge back into the Criminal Code.)

“Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized,” Justice Martin said in her first written judgment since joining the court a year ago.

“When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence,” she pointed out. “As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies. In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization.”

With Justices Suzanne Côté and Malcolm Rowe in dissent, Justice Martin went on to hold for the court that the surcharge which was first enacted in 1988, but became mandatory in October 2013, violates the Charter’s s. 12 prohibition of cruel and unusual punishment “because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.”

She explained that in the four appeals brought by the seven offenders who all live in serious poverty and face some combination of addiction, mental illness and disability, the fit sentence “would not have included the surcharge, as it would have caused undue hardship given their impecuniosity.”

She stressed “sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they are not.”

Daniel Santoro, who with Delmar Doucette and Megan Howatt of Toronto’s Doucette Santoro Furgiuele represented appellants Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead of Ontario, said there are several categories of people directly or indirectly affected by the decision.

“Today no more victim fine surcharge until further notice,” Santoro told The Lawyer’s Daily. “So any person who is now facing charges, anyone who is in the guilty plea courts ... and there [are] thousands and thousands of them, there’s going to be no victim fine surcharge for anybody,” he said. “That solves a whole host of problems going forward.”

As for those who are appealing their victim file surcharges, they will be able to seek relief in court, Santoro said. In his view, the offender would simply have to point on appeal to the Supreme Court’s judgment. “I don’t think anything more is required,” he opined. But he added, “I think for those people we are going to have to come up with a process to assist. … The courts are going to have to do their duty to make sure that people who are in the system on appeal can avail themselves of this relief.”

Santoro argued that with respect to the thousands of victim surcharge cases that are no longer in the court system, the attorneys general of all the provinces and territories have a duty to administratively purge all the outstanding victim surcharges that were imposed from 2013 until the court’s Dec. 14 judgment — failing which the governments would be open to a constitutional challenge seeking a remedy under s. 24(1) of the Charter.

“People who were able to pay probably have paid their fines by now,” Santoro remarked. “So if [governments] purge [unpaid victim surcharges], the only people who it is going to assist are the people that couldn’t pay, and they’re having this looming over their heads.”

(The House of Commons has already passed a government bill (C-75), which awaits second reading in the Senate, that would allow a court to exempt an offender from the requirement to pay a victim surcharge if the offender satisfies the court that the payment would cause the offender “undue hardship.” Bill C-75 also provides that a victim surcharge is to be paid for each offence, with an exception for some administration of justice offences if the total amount of surcharges imposed on an offender for those types of offences would be disproportionate in the circumstances. Courts would be required to provide reasons for granting any exception for certain administration of justice offences or any exemption from the requirement to pay a victim surcharge. The amendments would apply to offenders sentenced after the day on which they come into force.)

David Taylor, a spokesperson for Justice Minister Jody Wilson-Raybould, could not immediately say what the federal government’s response to the court’s judgment will be. “We are reviewing the decision and will take the necessary time to carefully consider its potential impacts on Bill C-75,” he said by e-mail. “Our government introduced legislation, which is now part of Bill C-75 before the Senate, to amend the same section of the Criminal Code that was struck down today. We did this in order to give judges the necessary discretion in applying the victim fine surcharge so that it does not unfairly target society’s most marginalized people who are in no position to pay.”

Brian Gray, a spokesperson for the Ontario Ministry of the Attorney General, said by e-mail the province is reviewing the decision and has no comments at this time. He said the Victim’s Justice Fund collects approximately $48 million annually — 88 per cent from the provincial victim surcharge and the balance from surcharges imposed under the Criminal Code, Controlled Drugs and Substances Act and the federal Contraventions Act.

Michael Bryant, executive director and general counsel of the intervener Canadian Civil Liberties Association, told The Lawyer’s Daily Ottawa should pass a law effectively declaring the mandatory victim surcharge of no force or effect retroactively (i.e. cancelling victim surcharge orders that remain unpaid). The former attorney general of Ontario, who called the surcharge “the ugliest populist criminal sanction around because it was so punitive and intentionally kicking people when they’re down,” suggested provinces and territories can also direct their Crowns not to prosecute breaches of existing mandatory victim surcharge orders.

On behalf of the intervener Criminal Lawyers’ Association, Vanora Simpson of Toronto’s Goldblatt Partners, said the impact of the ruling is “immediate and dramatic.”

“It affects every single person found guilty in Canadian courts in a way few other rulings have,” she noted. “The court appreciated that many offenders caught in the criminal justice system face multiple disadvantages. For those, like many of the appellants in this case, who are homeless or struggle with mental illness or disability or addiction issues, the victim surcharge could never be paid. As the court notes, it then creates an indefinite sentence.”

Simpson said many people still have old unpaid surcharges, thus perpetuating the cruel and unusual punishment imposed by the unconstitutional law.

“The provincial and federal government should speedily enact measures to forgive those debts,” she urged. “That would be a far more just and efficient approach than the alternative: every person with an unpaid victim surcharge can apply for it to be quashed when they next appear before a court for the regular inquiry into ability to pay.”

Vincent Larochelle, co-counsel for the intervener Yukon Legal Services Society, called the Boudreault decision “a welcome development, not just for the ruling that s. 737 is unconstitutional, but also for the precedent-setting analysis made by Justice Martin of s. 12” of the Charter.

“The message sent to lawmakers is clear,” Larochelle said. “Courts will not hesitate to strike down irrational and arbitrary sentencing regimes.”

He noted that a significant obstacle in the case was that the surcharge applied en masse to all Canadians, irrespective of their financial means.

“Justice Martin, by contextualizing the analysis of s. 737 in light of the objectives sought to be attained by Parliament, reached the conclusion that a mandatory victim fine surcharge fails to reach those objectives, and departs from the balanced and individualized sentencing regime entrenched in the Criminal Code,” Larochelle observed. “This ruling reinvigorates s. 12 jurisprudence, and I expect we will see a plethora of new challenges under this heading.”

He noted that Yukon courts stopped imposing victim fine surcharges the morning of the court’s decision. “In my personal opinion, given the finding that mandatory victim fine surcharges are unconstitutional, the AGs across Canada should immediately stop attempting to collect these fines,” he suggested. “If they [continue to try to collect], they will face repeated court challenges against the constitutionality and/or legality of their actions,” he predicted.

Larochelle advised defence counsel to tell their current clients, either at sentencing or in the appellate process, that the surcharge is not constitutional. “As for former clients, it is a more difficult subject,” he remarked. “On the one hand, the fines imposed in the past are still ‘legally’ binding. On the other hand, the ruling today has put a serious dent in the regime as a whole, including fines imposed in the past. Counsel should advise their former clients that there may be room for contesting the collection and/or enforcement of these fines. Justice Martin hints in this direction in her judgment. Hopefully, AGs across Canada will take the hint, and cease enforcing victim fine surcharges that were imposed under unconstitutional laws.”

In concluding that “the imposition and enforcement of the surcharge on the poorest individuals among us result in cruel and unusual punishment,” Justice Martin noted that s. 737 gives sentencing judges discretion to increase the amount of the surcharge, where appropriate, but not to decrease or waive it for any reason. Moreover, the surcharge can’t be appealed.

Section 737 stipulates that everyone who is discharged, pleads guilty to, or is convicted, of an offence under the Criminal Code or Controlled Drugs and Substances Act must pay the state a surcharge: 30 per cent of any fine imposed or, when no fine is imposed, $100 for every summary conviction count and $200 for every indictable count.

(Some sentencing judges found ways to ameliorate the impact of the mandatory surcharge on impoverished offenders, including imposing a low fine such as $1 (with a 30-cent surcharge); or giving the offender up to 99 years to pay.)

Justice Martin held that the surcharge constitutes “punishment” within the meaning of s. 12 of the Charter because it flows directly and automatically from conviction, and moreover s. 737(1) itself states that it applies “in addition to any other punishment imposed on the offender”. She said it also functions in practice like a fine, which is an established punishment, and it is intended to further the purpose and principles of sentencing.

For the offenders in the appeals and for the reasonable hypothetical offender, the surcharge leads to a grossly disproportionate sentence, Justice Martin held. “Although it advances the valid penal purposes of raising funds for victim support services and of increasing offenders’ accountability to both individual victims of crime and to the community generally, the surcharge causes four interrelated harms to persons like the offenders,” she said.

“First, it causes them to suffer deeply disproportionate financial consequences, regardless of their moral culpability. Second, it causes them to live with the threat of incarceration in two separate and compounding ways — detention before committal hearings and imprisonment if found in default. Third, the offenders may find themselves targeted by collections efforts endorsed by their province of residence. Fourth, the surcharge creates a de facto indefinite sentence for some of the offenders, because there is no foreseeable chance that they will ever be able to pay it.”

Justice Martin observed “this ritual of repeated committal hearings, which will continue indefinitely, operates less like debt collection and more like public shaming.”

She stated that indeterminate sentences “are reserved for the most dangerous offenders, and imposing them in addition to an otherwise short‑term sentence flouts the fundamental principles at the very foundation of our criminal justice system.”

Justice Martin said the surcharge also fundamentally disregards proportionality in sentencing. “It wrongly elevates the objective of promoting responsibility in offenders above all other sentencing principles, it ignores the fundamental principle of proportionality set out in the Criminal Code, it does not allow sentencing judges to consider mitigating factors or the sentences received by other offenders in similar circumstances, it ignores the objective of rehabilitation, and it undermines Parliament’s intention to ameliorate the serious problem of overrepresentation of Indigenous peoples in prison,” she reasoned.

Justice Martin added that the cumulative charge-by-charge basis on which the surcharge is imposed increases the likelihood that it will disproportionately harm offenders who are impoverished, addicted and homeless. “It will also put self-represented offenders at an additional disadvantage because they may not know that they may negotiate the terms of their plea in order to minimize the amount of the surcharge.”

She noted that judicial attempts to lessen the disproportion may be “salutary” but they cannot insulate the surcharge from constitutional review.

Justice Martin said it was not necessary to analyze whether s. 737 could be upheld under s. 1 of the Charter as a reasonable limit that is demonstrably justified in a free and democratic society because “the state did not put forward any argument or evidence to justify the surcharge if found to breach Charter rights.”

In her dissenting judgment backed by Justice Rowe, Justice Côté argued that the mandatory victim surcharge does not violate s. 12 of the Charter, nor does it deprive impecunious offenders of their security of the person contrary to s. 7 of the Charter. Any deprivation of liberty that may result from its application accords with the principles of fundamental justice, she held.

“While the surcharge constitutes punishment within the meaning of s. 12  of the Charter, and while a fit and proportionate sentence for the offenders in this case or the hypothetical impecunious offender would not include the surcharge, the negative effects associated with the surcharge are not abhorrent, intolerable or so excessive as to outrage the standards of decency,” Justice Côté concluded. “As a result, they do not rise to the level of gross disproportionality, and therefore the surcharge cannot be characterized as cruel and unusual.”

She identified several components of the mandatory surcharge regime that she considered attenuate “the particularly severe impact of the surcharge on impecunious offenders.”

Photo of Justice Sheilah Martin by Cristin Schmitz