In A Flash

Mandatory Victim Surcharges Quashed: Potential Impact on Provincial Sentencing in OHS Matters?

In its December 14, 2018 decision in R. v. Boudreault, the Supreme Court of Canada (the “Court”) struck down the mandatory victim surcharge imposed on individuals guilty of an offence under the Criminal Code of Canada (the “Code”). The Court’s approach to mandatory victim surcharges may impact individuals and corporations sentenced under provincial occupational health and safety legislation.

The surcharge was a feature of the Code for decades, and was characterized as a means of offsetting the cost of victim services programs. Section 737 of the Code provided that the amount of the surcharge was a minimum of 30 per cent of any fine imposed during sentencing. Where no fine was imposed, a set surcharge was levied. Judges did not have discretion to decrease or waive the surcharge.

The Court issued a decision with respect to four different cases (representing seven different accused) challenging the constitutionality of section 737 of the Code. Three of the cases addressed a decision of the Ontario Court of Appeal, which concluded that the mandatory victim surcharge regime was constitutional. The fourth case was the subject of a decision of the Quebec Court of Appeal, which also affirmed that the victim surcharge was constitutional. Most of the accused were impoverished and a number had drug and alcohol addictions which, in one case, was accompanied by mental illness. All of the accused had been sentenced to jail with a surcharge imposed by the trial court.

It was argued that the Code’s mandatory victim surcharge violated sections 12 (protection against cruel and unusual treatment or punishment) and 7 (the right to life, liberty and security of the person) of the Charter of Rights and Freedoms (the “Charter”). With respect to the cruel and unusual punishment argument, the Court determined that the surcharge was a “punishment” imposed on offenders and, therefore, fell into the ambit of section 12. The Court specifically examined the disproportionate financial consequences faced by individuals ordered to pay the surcharge. The Court determined that the ultimate effect of the surcharge was to create an indefinite criminal sanction for offenders unable to pay the surcharge, which included the appellants, who belonged to a number of marginalized groups. The Court also took issue with the fact that the surcharge was mandatory, noting that judges were unable to consider a marginalized offender’s inability to pay, and to grant relief against payment on that basis.

The Court allowed the appeals and held, in a 7-2 ruling, that the impact and effects of the mandatory victim surcharge was “cruel and unusual” and consequently in violation of section 12 of the Charter. The Court declared section 737 of the Code to be of no force and effect immediately. Given the Court’s determination with respect to section 12, the Court did not address whether the victim surcharge violated section 7 of the Charter.  Though the Court did not direct the federal government in how to respond to the ruling, it was suggested that a surcharge provision could be incorporated into the Code if it provided judges with discretion in its application – a feature that had been present until 2013.

This decision may affect individuals and corporations convicted of offences under provincial occupational health and safety legislation, including the Ontario Occupational Health and Safety Act. Under the Ontario Provincial Offences Act, a mandatory victim fine surcharge of 25 per cent is imposed on the levied fine (a surcharge is not applied to jail sentences). Like the Code’s surcharge provision, the Provincial Offences Act does not give sentencing courts any discretion regarding the imposition of the surcharge – a key consideration in Boudreault.

Exactly how the decision will affect provincial surcharges is not clear. Individual defendants charged with provincial offences may face similar barriers to payment as individuals who have been charged criminally, and corporations may, in some circumstances, also be impecunious. Both individuals and corporations may have little realistic ability to pay mandatory provincial surcharges. To the extent that Boudreault can be interpreted as the Supreme Court of Canada instructing that discretion, in all aspects of sentencing, is necessary for trial courts to fashion appropriate, individualized penalties, mandatory provincial surcharges may also be vulnerable to challenge.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

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