Ontario Criminal

Charter of Rights

Sentencing judge erred by concluding that victim surcharge violated s. 12 of Charter

Accused pleaded guilty to seven charges, including assault, and was sentenced to six months conditional sentence followed by six months’ probation. Sentencing judge determined accused was to pay $700 victim surcharge pursuant to s. 737(2) of Criminal Code. At sentencing hearing, accused argued s. 737(1) of Code violated his rights protected by ss. 7, 12, and 15 of Canadian Charter of Rights and Freedoms, and challenged its constitutional validity. Sentencing judge concluded that victim surcharge constituted “punishment”, undertook constitutional analysis in accordance to s. 12 of Charter, and established that victim surcharge violated s. 12 of Charter and that s. 737(1) of Code was inoperative. Crown appealed. Appeal allowed. Sentencing judge erred by concluding that victim surcharge violated s. 12 of Charter. Sentencing judge erred as there was insufficient evidence to support his conclusions concerning impact of victim surcharge on accused in question and on other offenders. Sentencing judge committed error by speculating accused’s future circumstances and psychological impact that surcharges would have on accused. It was not appropriate to attribute consequences of unbearable stress as reasonably foreseeable circumstance by hypothetical offender. Stress imposed by payment of victim surcharge did not constitute cruel and unusual punishment. Sentencing judge erred in concluding that victim surcharge was grossly disproportionate sentence incompatible with human dignity. However, sentencing judge did not commit error undertaking functionalist approach in concluding that victim surcharge constituted “punishment” and “treatment” within meaning of s. 12 of Charter, for it imposed penalty upon accused, penalty which he had to pay to state.

R. c. Larocque (Sep. 29, 2015, Ont. S.C.J., Laurie Lacelle J., File No. 13-1346) Decision at 117 W.C.B. (2d) 130 was reversed.  125 W.C.B. (2d) 17.

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