Notice has been filed seeking leave to appeal a decision last month by Superior Court Justice Bruce Glass that the surcharges of $100 per summary conviction offence and $200 per indictable conviction, do not violate the Charter.
The provisions have a disproportionate effect on low-income offenders and those with disabilities, with “no perceivable positive benefit for government or society,” says Daniel Santoro, who is representing the appellants.
Speaking about the legislation in general and not the backgrounds of his clients, the surcharges “further entrench people in the cycle of poverty,” says Santoro, a lawyer at Doucette Boni Santoro Furgiuele in Toronto.
The president of the Ontario Criminal Lawyers’ Association says it will seek to play a role in the appeal.
“We are committed to intervene on this issue,” says Anthony Moustacalis.
The mandatory nature of the surcharges is “impractical and illogical,” he adds, saying that discretion on whether they should be imposed, should be returned to trial judges.
If leave is granted, it will be the first time a provincial Court of Appeal has been asked to decide the constitutionality of the amendments enacted in 2013 as part of the Increasing Offenders’ Accountability to Victims Act.
At the time they were announced, then-justice minister Rob Nicholson described the reason behind the changes, which was to hold offenders accountable to victims.
“A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing,” Nicholson told a House of Commons committee.
The ruling by Glass in R v. Tinker Judge Bondoc & Mead, stemmed from a Crown appeal and it is the first Superior Court decision in Ontario on the issue.
The four defendants had all been convicted of relatively minor offences and were of “limited financial resources,” noted Glass. One of the accused for example, is legally blind, lives on social assistance, and has $31 left over after paying her monthly rent.
Glass concluded the surcharges are not punishment.
“It is not in the form of a penalty. It flows from a conviction for a crime, but it is not a sanction in its own right,” he wrote. Instead, it is “a sum of money established to be a consequence of breaking the law,” stated Glass, who compared it to a DNA order.
The provisions leave it up to each province to determine the collection mechanisms. In the case before Glass, the Crown agreed to allow the defendants two years to pay surcharges ranging from $200 to $300.
Glass, who earns $308,000 annually as a Superior Court judge, stated that if the defendants do not put aside enough money to pay, they are the “author of their own misfortune,” for any future sanctions.
The surcharges have been criticized by provincial court judges across the country and in some cases they have waived payment.
Last year in Saskatchewan, the Crown was successful in obtaining a writ of mandamus in the Court of Queen’s Bench, which ordered the provincial court judge to impose the surcharge. The sentencing judge’s actions were “defiant and improper” ruled Chief Justice Martel Popescul in granting the Crown’s request.
The most exhaustive ruling on the surcharges was issued in July 2014, by Ontario provincial court Justice David Paciocco, who found in R v. Michael that the provisions violated s. 12 of the Charter.
The defendant, who had addiction issues, was homeless and lived on $250 per month in social assistance, was facing $900 in surcharges for offences that included breaching court orders and for trying to shoplift a bottle of alcohol
The three Crown attorneys in the provincial court trial, led by Dallas Mack, argued the surcharges are not disproportionate and even if Michael could never pay, he would not face additional time in jail.
Paciocco observed that while the Crown agreed that Michael is unlikely ever to be able to seek credit or find the money to apply for a criminal pardon, he is still expected under the law to pay the surcharge.
“If Mr. Michael cannot pay that victim surcharge because of his poverty, the effect is that he will be perpetually disqualified from applying for full integration and formal forgiveness,” wrote Paciocco, who noted that an offender cannot apply for a pardon if surcharge money is still owed.
The Crown filed an appeal of Paciocco’s finding that the surcharges breached the Charter. It abandoned its appeal, on the eve of the hearing in Superior Court last month, after Glass issued his decision, which is currently binding on provincial court judges in Ontario.