Supreme Court

Criminal Law

Sentencing procedure and principles

Types of sentence

Surcharge created de facto indefinite criminal sanction for some offenders

Several impecunious offenders appealed imposition of victim surcharge. One accused had no high school education, had never held steady job, and had no income for almost two years. Most serious crimes for which accused was sentenced were committed at time when he was homeless and unemployed. Sentencing judge reduced victim surcharge from $4,000.00 to $1,400.00, being of opinion that $1,400.00 did not constitute cruel and unusual punishment. Accused’s appeal from imposition of victim surcharge was dismissed. Court of appeal found that various provisions gave impecunious offenders time to pay and limited state’s collection options. Several accuseds appealed with Supreme Court of Canada. Appeal allowed. Mandatory victim surcharge constituted cruel and unusual punishment, as defined by s. 12 of Charter. Imposition and enforcement of surcharge on poorest individuals resulted in cruel and unusual punishment. Surcharge was considered to be punitive sanction as it flowed directly and automatically from conviction. Victim surcharge also had significant impact on the liberty, security, equality, and dignity of those subject to its application. All accuseds that appealed imposition of victim surcharge lived in serious poverty and had precarious housing situations. For certain effects of mandatory surcharge create grossly disproportionate punishment. Victim surcharge forced people to endure possibility of indeterminate sanction. Judges imposing victim surcharge could exercise no discretion in event that offender was unable to pay. This created deeply disproportionate effects for those who were most impoverished. Offenders who were poor, homeless, and addicted would live with threat of incarceration, and it was reasonably likely that they would spend at least some time in detention as result of surcharge. Ultimate effect of surcharge was that it created de facto indefinite criminal sanction for some offenders. Inability of offenders to repay their full debt to society and to apply for reintegration and forgiveness hit very foundations of criminal justice system.. Surcharge also undermined Parliament’s intention to ameliorate serious problem of overrepresentation of Indigenous peoples in prison. Victim surcharge could not be justified under s. 1 of Charter.

R. v. Boudreault (2018), 2018 CarswellOnt 20975, 2018 CarswellOnt 20976, 2018 SCC 58, 2018 CSC 58, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2016), 2016 CarswellQue 11341, 2016 CarswellQue 11705, 2016 QCCA 1907, Duval Hesler J.C.Q., Schrager J.C.A., and Mainville J.C.A. (C.A. Que.). (S.C.C.); reversed (2017), 2017 CarswellOnt 10029, 2017 CarswellOnt 10030, 2017 ONCA 552, Paul Rouleau J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.).

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