COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tinker, 2017 ONCA 552

DATE: 20170630

DOCKET: C60413, C60478 and C61572

Rouleau, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edward Tinker, Kelly Judge, Michael Bondoc and
    Wesley Mead

Appellants

AND BETWEEN

Her Majesty the Queen

Respondent

and

Garrett Eckstein

Appellant

AND BETWEEN

Sa Majesté La Reine

Respondent

et

Daniel Larocque

Appellant

Delmar Doucette, Daniel Santoro and Megan Howatt, for
    the appellants Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead

James Foord and Brandon Crawford, for the appellant
    Garret Eckstein

Yves Jubinville, for the appellant Daniel Larocque

Michael Perlin and Philippe Cowle, for the respondent
    Attorney General of Ontario

Luc Boucher and Tim Radcliffe, for the
    respondent Service des poursuites pénales du Canada

Jackie Esmonde and Daniel Rohde, for the intervener
    Income Security Advocacy Centre

Diana Lumba, for the intervener Criminal Lawyers
    Association

Christopher Bredt, Pierre Gemson and Rahim Jamal, for
    the intervener Canadian Civil Liberties Association

Heard: March 13-14, 2017

On appeal from the decision of the Summary Conviction
    Appeal Court dated January 29, 2015 by Justice Bruce A. Glass of the Superior
    Court of Justice, with reasons reported at 2015 ONSC 2284, 20 C.R. (7th) 174, allowing
    the appeal from the sentence imposed on April 15, 2014 by Justice Robert W.
    Beninger of the Ontario Court of Justice, with reasons reported at 2014 ONCJ
    208, 120 O.R. (3d) 784.

On appeal from the decision dated April 13, 2015 by
    Justice David Paciocco of the Ontario Court of Justice, with reasons reported
    at 2015 ONCJ 222.

On appeal from the decision of the Summary Conviction
    Appeal Court dated September 29, 2015 by Justice Laurie Lacelle of the Superior
    Court of Justice, with reasons reported at 2015 ONSC 5407, allowing the appeal
    from the sentence imposed on September 4, 2014 by Justice Jean G. Legault of
    the Ontario Court of Justice, with reasons reported at 2014 ONCJ 428.

Pardu J.A.:

[1]

Does the mandatory imposition of a victim surcharge following a conviction
    for a criminal offence violate the
Canadian

Charter of Rights and
    Freedoms
? Where it is foreseeable that the offender will not be able to
    pay for some time, a court may grant the offender an extension of the time to
    pay. Extensions are not procedurally difficult to obtain. An impoverished offender
    who cannot pay the surcharge within the time provided cannot be imprisoned for
    failure to pay. No civil enforcement mechanism, such as garnishment or seizure
    of assets, is available to enforce collection of the surcharge.

[2]

The mandatory victim surcharge in s. 737 of the
Criminal Code
does not limit the rights guaranteed by ss. 7 or 12 of the
Charter.
I
    would dismiss these appeals.

A.

Background

[3]

I will begin by describing the statutory scheme governing the imposition
    and enforcement of the surcharge that is challenged in this appeal. Then, I
    will describe the appellants and the procedural history of these appeals.

(1)

The Surcharge Regime

(i)

Mandatory Imposition of the Surcharge in s. 737 of the
Code

[4]

Section 737(1) of the
Code
provides that a person convicted of
    an offence under the
Code
, or the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19 (
CDSA
), shall pay a victim surcharge in
    addition to any other punishment imposed on the offender. The language of the
    provision makes the imposition of the surcharge mandatory.

[5]

The mandatory nature of s. 737(1) was introduced in 2013 with the
    passage of the
Increasing Offenders Accountability for Victims Act
,
    S.C. 2013, c. 11 (Bill C-37). Before the passage of Bill C-37, s. 737(1) of
    the
Code
gave the court discretion, on an application by the offender,
    to exempt the offender from the surcharge [w]hen the offender establishes to
    the satisfaction of the court that
undue hardship
to the offender or the dependants of the offender would result from payment of
    the victim surcharge (emphasis added). Section 3(1) of Bill C-37 changed s.
    737(1) of the
Code
into its present form and made the surcharge
    mandatory.

[6]

The amount of the surcharge is equal to 30% of any fine imposed on an
    offender at sentencing. If no fine is imposed, it is equal to $100 in the case of
    a summary conviction offence or $200 in the case of an indictable offence: s.
    737(2). But the court may make an order for an amount exceeding the prescribed
    amount if the court considers such an order appropriate in the circumstances
    and is satisfied that the offender is able to pay the higher amount: s. 737(3).

[7]

Under s. 737(4) of the
Code
, the surcharge is payable within
    the time established by the lieutenant governor in council of the province in
    which the surcharge is imposed. In Ontario, the time is 30 days for summary
    conviction offences and 60 days for indictable offences: Order in Council, O.C.
    2173/99.

(ii)

Enforcement of the Surcharge through the Fines and
    Forfeiture Provisions of the
Code

[8]

Section 737(9) of the
Code
makes certain of the Fines and
    Forfeiture provisions of the
Code
applicable to enforce the victim
    surcharge. These provisions are integral components of the surcharge regime
    established by s. 737.

[9]

Section 734(3) of the
Code
provides that a person is in default
    of payment of the surcharge if the surcharge has not been paid in full by the
    time specified in the terms of the order imposing the surcharge. The content of
    the order is prescribed in s. 734.1. It must include the time or times by which
    the fine, or any portion of it, must be paid.

[10]

However,
    s. 734.3 provides that, on application by or on behalf of an offender, a court
    that makes an order under s. 734.1 may change any term of the order except the
    amount of the surcharge. The court may accordingly extend the time by which the
    surcharge is to be paid.

[11]

If
    an offender defaults on payment of the surcharge, the province may refuse to
    issue or renew, or may suspend, a licence, permit or other instrument in
    relation to the offender until the surcharge is paid in full: s. 734.5(b).

[12]

A
    term of imprisonment is deemed to be imposed on an offender in default of
    payment of the surcharge: s. 734(4). Under s. 734(5), the term is equal to the
    lesser of two amounts: first, the unpaid amount of the surcharge, plus the
    costs of committing the defaulter to prison, divided by eight times the applicable
    provincial minimum wage; and, second, five years in the case of an indictable
    offence or six months in the case of a summary conviction offence. With the
    minimum wage in Ontario currently being $12.10 an hour (O. Reg. 285/01, s.
    5(1)), the term of imprisonment in Ontario for defaulting on the entirety of a
    $200 surcharge imposed on someone convicted of an indictable offence would be approximately
    two days. It is theoretically possible for a person convicted of multiple
    indictable offences, who has defaulted on paying multiple surcharges, to be
    subject to a five-year term of imprisonment under s. 734(5).

[13]

However,
    s. 734.7 of the
Code
establishes conditions to be met, and a process
    for a committal hearing, before a warrant for a defaulting offenders committal
    can be issued. It provides:

(1) Where time has been allowed for payment of a
    fine, the court
shall not
issue a warrant of committal in default of
    payment of the fine

(a)
until
    the expiration of the time allowed for payment of the fine in full; and

(b)

unless
the court is satisfied

(i)
that [a licence suspension or refusal is]
    not appropriate in the circumstances,
or

(ii)
that the offender has, without reasonable
    excuse, refused to pay the fine or discharge it under section 736. [Emphasis
    added.]
[1]

[14]

Section
    736 of the
Code
, referred to at the end of s. 734.7(1), provides for a
    fine option program, to be established by the relevant province, through
    which an offender in default of the surcharge may earn credits towards payment
    of the surcharge for work in the program. Ontario has not established such a
    program.

[15]

An
    offender who has defaulted on a surcharge payment may be compelled to appear at
    a committal hearing by means of the methods set out in Parts XVI and XVIII of
    the
Code
: s. 734.7(3). These include laying an information against the
    offender or issuing a summons to appear or a warrant for the offenders arrest.

[16]

Finally,
    s. 737(9) of the
Code
does not import procedures in s. 734.6 through
    which the government may commence civil proceedings against an offender who has
    defaulted on a surcharge payment to recover the amount of the fine imposed.

(2)

THE DECISIONS UNDER APPEAL

(i)

The
Tinker
Appellants

[17]

There
    are four appellants in the first appeal considered in these reasons
    (collectively, the
Tinker
appellants). They were convicted of
    separate offences at separate times, but they were all sentenced together. The
    sentencing judge held that the surcharge was unconstitutional and refused to
    apply it in his sentencing decisions.

[18]

Edward
    Tinker was 55 years old at the time of sentencing. He pleaded guilty to one
    count of uttering threats contrary to s. 264.1 of the
Code
and one
    count of breach of probation. The Crown proceeded summarily. The sentencing
    judge, Beninger J., imposed a sentence of 26 days imprisonment, after credit
    for pre-trial custody, to be served intermittently followed by a two-year probation
    period. A 10-year firearms prohibition order and a DNA databank order were also
    made.

[19]

Mr.
    Tinker is unable to work due to a workplace injury. He suffers from heart
    disease and cancer. He has no savings. He is receiving CPP and Workers
    Compensation benefits totalling $1,200 per month. His monthly costs include
    $950 for rent and $80 for medication (although he receives reimbursement of
    some medication costs at the end of the year). His disposable income thus
    amounts to about $170 per month.

[20]

Kelly
    Judge was 53 years old at the time of sentencing. She pleaded guilty to the
    summary conviction offences of assault contrary to s. 266 and uttering threats
    contrary to s. 264.1 of the
Code
. Beninger J. imposed a suspended
    sentence and 18 months probation, after credit for pre-trial custody, and made
    a firearms prohibition order and a DNA databank order.

[21]

Ms.
    Judge is legally blind and a recovering alcoholic. She suffers from depression
    and bi-polar disorder. She has savings of $2,000. Her income is $831 per month
    from CPP disability benefits and her rent is $800 per month, which leaves her
    with $31 per month plus her savings for all her other expenses.

[22]

Michael
    Bondoc was 24 years old at the time of sentencing. He pleaded guilty to two summary
    conviction counts of breach of probation contrary to s. 733.1(1) of the
Code
.
    Beninger J. imposed a sentence of 33 days incarceration, after pre-trial
    credit.

[23]

Mr.
    Bondoc immigrated to Canada at the age of 14 with his mother. At the time of
    sentencing, he was laid off from his employment due to a lack of work.

[24]

Wesley
    Mead was 46 years old at the time of sentencing. He is married with two
    children, aged 14 and 8. He pleaded guilty to the summary conviction offences
    of possession of a weapon for a purpose dangerous to public peace, contrary to
    s. 88 of the
Code
, one count of assault, contrary to s. 266, and
    resisting arrest contrary to s. 270(1)(b).
Beninger
    J. imposed a suspended sentence and 18 months probation, after credit for
    pre-trial custody, and made a firearms prohibition order and a DNA databank
    order.

[25]

It
    is beyond dispute that Mr. Tinker, Ms. Judge and Mr. Bondoc face social
    hardship  what they refer to as marginalization  as a result of mental and
    physical disability, poor health, poverty, lack of steady income or employment
    and recent immigrant status. They all received modest sentences for summary
    conviction offences.

[26]

For
    each of the
Tinker
appellants, Beninger J. reserved on the issue of
    whether to impose the surcharge under s. 737 of the
Code
, as they each
    brought an application challenging the constitutional validity of the surcharge
    under ss. 7, 12 and 15 of the
Charter
.
[2]

[27]

Beninger
    J. made note of the 2013 amendments made to s. 737 of the
Code
by Bill
    C-37. He stated that, if he still had the discretion to refrain from imposing
    the surcharge in the present case, he would do so, given the hardship to the
    appellants that would result from imposing the surcharge. He concluded that the
    surcharge infringes s. 7 of the
Charter
. He held that the objective of
    the surcharge is to
increase offenders
    accountability to victims of crime
 by eliminating judicial discretion
    to waive the surcharge but that the removal of the Courts ability to waive
    the surcharge is arbitrary, overreaching, and grossly disproportionate to the
    legislative goal which is advocated: 2014 ONCJ 208, 120 O.R. (3d) 791, at
    paras. 30-34. He held that the infringement is not justifiable under s. 1 of
    the
Charter
. Having reached these conclusions, he decided that it was
    not necessary to consider whether the surcharge infringes ss. 12 or 15 of the
Charter
.

[28]

The
    SCAC judge, Glass J., overturned the sentencing judges decision, holding that s.
    737 of the
Code
does not infringe s. 7 of the
Charter
. He
    stated that the appellants were in a similar situation as the offender at issue
    in
R. v. Wu
, 2003 SCC 73, [2003] 3
    S.C.R. 530. Although
Wu
did not
    involve a
Charter
challenge, the
    Supreme Court of Canada held that an indigent offender should be granted
    extensions of time to pay a mandatory fine imposed by the
Excise Act
, R.S.C. 1985, c. E-14. Glass J. stated that the
    appellants could also be given extensions of time to pay the surcharge imposed
    by s. 737 of the
Code
.

[29]

Glass
    J. applied the surcharge to each appellant in accordance with s. 737 of the
Code
.
    The total amount of the surcharge for Mr. Tinker, Ms. Judge and Mr. Bondoc was
    $200 each; for Mr. Mead, it was $300. The Crown consented to an allowance of two
    years for them to pay the surcharge, which Glass J. accepted.

(ii)

Garrett Eckstein

[30]

Garrett
    Eckstein pleaded guilty to the indictable offences of robbery, conspiracy to
    commit robbery and breach of probation, contrary to ss. 344(1), 465(1)(c) and
    733.1(1) of the
Code
, respectively. The sentencing judge, Paciocco J.,
    imposed a sentence of 8 months incarceration less pre-trial custody.

[31]

Mr.
    Eckstein also faced a mandatory victim surcharge under s. 737 of the Code of
    $600. He brought an application challenging the validity of s. 737 under s. 12
    of the
Charter
, not in relation to his circumstances but in relation
    to hypothetical offenders. The hearing was held after the decision of Glass J.
    in
Tinker
was released.

[32]

Paciocco
    J. held that he was bound by
Tinker
, even though the issue in
Tinker
was whether the surcharge infringes s. 7 of the
Charter
. He reasoned
    that
it would not be appropriate for courts to
    interpret the concept of proportionality differently under s. 7 than it is
    interpreted under s. 12. He had previously decided in
R. v. Michael
, 2014 ONCJ 360, 121 O.R. (3d) 244, that the surcharge
    breaches s. 12 of the
Charter
in
    a manner that is not justified under s. 1. However, he concluded that he was
    bound by
Tinker
even though it is
    inconsistent with
Michael
.

[33]

Paciocco
    J. therefore applied the $600 surcharge to Mr. Ecksteins sentence and gave him
    12 months to pay it.

(iii)

Daniel Larocque

[34]

Daniel
    Larocque is 22 years old. He pleaded guilty to seven summary conviction charges:
    possession of morphine contrary to s. 4(1) of the
CDSA
; three counts
    of assault contrary to s. 266 of the
Code
; uttering threats contrary
    to s. 264.1 of the
Code
; and two counts of mischief contrary to s.
    430(4) of the
Code
.

[35]

Like
    certain of the
Tinker
appellants, Mr. Larocque faces undeniable
    hardship in his life. He is impecunious and suffers from drug addiction and
    mental illness. He was placed with a childrens aid society when he was a child
    and he has consumed alcohol and various drugs since adolescence. He pays for
    his housing and food using disability benefits, leaving him with $136 per month
    to pay for other expenses.

[36]

Following
    a joint submission by the Crown and defence, and taking into account 68 days
    pre-trial custody, the sentencing judge, Legault J., imposed a six-month
    conditional sentence and 18 months probation for Mr. Larocque.

[37]

Mr.
    Larocque was subject to a $700 surcharge under s. 737 of the
Code
. He brought
    an application challenging the constitutionality of s. 737 under ss. 7, 12 and
    15 of the
Charter
. A separate hearing was held to deal with the
    application.

[38]

Legault
    J. held that the provision unjustifiably infringes s. 12 and refused to impose
    the surcharge. The effects on Mr. Larocque of imposing the $700 surcharge, in
    addition to the other elements of his sentence, were grossly disproportionate
    to the gravity of the offences he committed, given Mr. Larocques particular
    circumstances. His mental and physical disabilities and lack of income would
    prevent him ever being able to pay the surcharge, which would amount to
    punishment without end. He would have to sacrifice funds to pay for his health,
    hygiene, sustenance and clothing to pay the surcharge, which would reduce his
    already low quality of life. Legault J. declined to consider the ss. 7 and 15
Charter
challenges.

[39]

The
    Crown appealed. The SCAC judge, Lacelle J., agreed that the surcharge
    constitutes punishment under s. 12 of the
Charter
and that, in any
    event, it constitutes treatment under s. 12. However, she concluded that it
    is not cruel and unusual. Citing the Supreme Courts decision in
Wu
,
    she held that it was an error to assume, at the time of sentencing, that Mr. Larocques
    financial circumstances would continue into the future such that he would be
    forever unable to pay the surcharge. There was also no evidence to support the
    finding that, if
left unpaid, the surcharge would
    create ongoing stress for him rising to the level of cruel and unusual
    punishment or treatment. Lacelle J. further held that the amount of the
    surcharge imposed by s. 737 of the
Code
was proportionate to the number of convictions entered against Mr. Larocque
    and the fact that he was convicted of summary conviction offences. She referred
    to
R. v. Pham
(2002), 167 C.C.C.
    (3d) 570 (Ont. C.A.), in which this court held that a very large mandatory minimum
    fine imposed under the
Excise Act
for possessing contraband tobacco did not infringe s. 12 of the
Charter
, even though the offender in that case had no ability
    to pay a fine of that amount.

[40]

Lacelle
    J. went on to hold that s. 737 of the
Code
does not infringe s. 7 of
    the
Charter
. Mr. Larocque was not deprived of liberty by s. 737. The
    requirement under s. 734.7 of the
Code
for a court to be satisfied
    that an offender refused to pay a surcharge without reasonable excuse before
    issuing a warrant for committal ensures that the offender cannot be imprisoned
    for default. Mr. Larocque was also not deprived of his security of the person,
    as he could apply for extensions of time to pay the surcharge under s. 734.3 of
    the
Code
instead of having to pay using the funds he needs to pay for
    the necessaries of life.

[41]

Finally,
    Lacelle J. held that s. 737 of the
Code
does not infringe s. 15 of the
Charter
. It does not create a distinction based on an enumerated or
    analogous ground by having a disproportionate negative impact on those with
    physical or mental disabilities, such as Mr. Larocque.

B.

ANALYSIS

(1)

Leave to appeal

[42]

Before
    this court, the
Tinker
appellants renew their ss. 7, 12 and 15
Charter
claims. Mr. Eckstein and Mr. Larocque each pursue their s. 12 claims.

[43]

A
    preliminary issue is whether the appellants should be granted leave to appeal their
    claims pursuant to s. 839(1) of the
Code
, which provides that an
    appeal from a decision of a SCAC involving a question of law alone requires
    leave from this court.

[44]

The
    governing test for leave was developed in
R. v. R.R
., 2008 ONCA 497, 90
    O.R. (3d), at paras. 29-31. It was summarized in
R. v. Metin
, 2013 ONCA
    21, 113 O.R. (3d) 716, at para. 15 as follows:

(1)

The
    proposed appeal must involve a question of law alone;

(2)

The proposed question of law must be significant, beyond the particular
    case, to the administration of justice in the province; and

(3)

The
    proposed appeal should have some apparent merit.

[45]

The
    Crown concedes that, applying this test, this court should grant each appellant
    leave to pursue their ss. 7 and 12
Charter
claims. I agree. The
    significance of the constitutional questions to the administration of justice
    in Ontario is apparent. Their resolution by this court will affect the everyday
    practice of provincial court and Superior Court sentencing judges, who are
    required to impose the surcharge by s. 737 of the
Code
. It will also
    assist in resolving inconsistency in the law. In addition to the decisions
    under appeal here, the constitutionality of s. 737 has been considered in
Michael
;
R. v. Flaro
, 2014 ONCJ 2, 7 C.R. (7th) 151;
R. v. Javier
,
    2014 ONCJ 361, 318 C.R.R. (2d) 1;
R. v. Novielli
, 2015 ONCJ 192, 322
    C.C.C. (3d) 239; and
R. v. Madeley
, 2016 ONCJ 579, 32 C.R. (7th) 136.
    The courts have reached differing conclusions on the issue. The validity of s.
    737 has also been considered outside Ontario, again with mixed results. In
R.
    v. Barinecutt
, 2015 BCPC 189, 377 C.R.R. (2d) 1, the British Columbia
    Provincial Court ruled that the surcharge infringes ss. 7 and 12 of the
Charter
.
    Quebec courts have ruled that the surcharge does not infringe s. 12 of the
Charter
:
R. c. Malouin
, 2015 QCCQ 14118; and
R. c. Boudreault
, 2016
    QCCA 1907, 343 C.C.C. (3d) 131. These inconsistent results across the country
    suggest that the appellants proposed appeals on s. 7 and s. 12
Charter
grounds have some apparent merit.

[46]

However,
    the Crown submits that leave should not be granted to the
Tinker
appellants s. 15
Charter
challenge. I accept this submission.

[47]

Although
    the
Tinker
appellants raised the s. 15 issue at sentencing, it was not
    before the SCAC judge. In
R.R.
at para. 38, Doherty J.A. stated that, for
    summary conviction appeals to this court that have already gone through the
    SCAC, [g]enerally speaking, this court should not entertain legal arguments
    that were not advanced at the first level of appeal. See also
R. v. Im
,
    2009 ONCA 101, 242 C.C.C. (3d) 77, at para. 23.

[48]

I
    recognize that this court has discretion to depart from this strict approach:
    see
R. v. Smits
, 2012 ONCA 524, 36 M.V.R. (6th) 217, at para. 35. It
    has discretion to consider arguments not made before the court whose decision
    is appealed from, including
Charter
arguments:
R. v. Roach
,
    2009 ONCA 156, 246 O.A.C. 96, at paras. 6-7.

[49]

However,
    this court is generally at a disadvantage when it comes to hearing new issues
    that have not been fully canvassed by the court below. As Doherty J.A. wrote in
Roach
at para. 8, [a]ppeal courts review decisions made at trial. The
    appeal process is premised on the issues under appeal having been vetted in the
    trial court and subjected to the reasoned analysis of the trial court. Furthermore,
    this court will be better situated to entertain a new issue raised on appeal if
    the factual record before it is sufficiently robust to permit the new issue to
    be fully, effectively and fairly addressed on appeal even though it was not
    raised at trial:
Roach
, at para. 7. See also
Smits
, at para.
    35.

[50]

The
    sentencing judge in
Tinker
did not consider it necessary to decide the
    appellants s. 15 challenge to the surcharge in the
Code
. He made no
    factual findings in relation to this issue. Nor did the SCAC judge, as the
    issue was not before him either. This court therefore does not have the benefit
    of a fulsome and detailed analysis by the courts below of the complex
    jurisprudence interpreting s. 15 of the
Charter
or applying that
    jurisprudence to s. 737 of the
Code
in the context of a robust factual
    record.

[51]

The
Tinker
appellants did not press the s. 15 aspect of their
Charter
claims in oral argument before this court. Although they raised s. 15 in their
    written submissions, in oral argument they chose to focus instead on their ss.
    7 and 12
Charter
claims.

[52]

For
    these reasons, I would not grant leave to appeal on the issue of whether the
    victim surcharge violates the s. 15
Charter
rights of the
Tinker
appellants.

(2)

Four Propositions Concerning the Actual Operation of the Surcharge Regime

[53]

Before
    directly addressing the ss. 7 and 12
Charter
challenges properly
    before this court, I propose to outline four propositions concerning the
    statutory scheme in which s. 737 of the
Code
is situated. Some of these
    emerge from judicial interpretations of the relevant Fines and Forfeiture
    provisions of the
Code
that are used to enforce the surcharge. As we
    shall see, appreciating the actual operation of the surcharge regime is
    critical for assessing the effect of the surcharge on the appellants
    constitutionally protected interests.

[54]

First,
    if an offender who became subject to the surcharge when he or she was sentenced
    subsequently applies under s. 734.3 of the
Code
to extend the time to
    pay the surcharge before defaulting, relying on a lack of means to pay, the
    court
must
grant the application and give the
    offender time to pay that is reasonable in the circumstances.

[55]

This
    proposition is supported by the Supreme Court of Canadas decision in
Wu
(although that decision did not involve a constitutional challenge). In
Wu
,
    an offender was convicted of possession of 300 cartons of contraband
    cigarettes. The
Excise Act
imposed a mandatory minimum fine,
    irrespective of an offenders ability to pay, calculated at $0.16 per
    contraband cigarette. For the offender at issue, this amounted to $9,600.

[56]

The
    trial judge found that the offender was, at the time of sentencing and in the
    foreseeable future, not able to pay such a large fine. He was of the view that
    imprisonment for any length of time would not be a fit sentence and that it would
    not be just for the offender to be incarcerated for defaulting in payment of
    the fine. The trial judge resolved this problem by imposing the fine and giving
    no time to pay, which put the offender into immediate default and exposed him
    to potential incarceration. The trial judge then imposed a conditional sentence
    to be served by the offender in the community. The issue before the Supreme
    Court was whether the conditional sentence was validly imposed.

[57]

A
    majority of the Supreme Court held it was an error for the trial judge to
    impose the minimum fine and not give the offender time to pay. This improperly
    turned a penalty that Parliament intended to restrict the offenders financial
    interests to one that restricted his liberty. Binnie J. wrote, at para. 31, that
    [i]f it is clear that the offender does not have the means to pay immediately,
    he or she should be given time to pay. The time should be what is reasonable in
    all the circumstances (citations omitted). This principle was reiterated in a
    different context in
R. v. Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392,
    at para. 47.

[58]

Returning
    to the first proposition concerning the actual operation of the
Code
s
    surcharge regime articulated above, if an impoverished offender applies to the
    court to extend the time to pay a surcharge to which he or she is subject, the
    court
must
give the offender reasonable time to
    pay. Although in Ontario there are set times within which a surcharge must be
    paid that must be imposed along with the surcharge at sentencing, there is no
    reason why the offender cannot bring an application for an extension of time at
    the conclusion of a sentencing hearing itself so as to obtain an extension
    immediately after the surcharge is imposed. I would add the observation that neither
    s. 737 of the
Code
nor the
Code
s Fines and Forfeiture
    provisions specify that a formal court application is necessary to obtain an
    extension of the time to pay. Obtaining an extension should not be onerous or
    procedurally difficult. A lengthy extension may be granted where the offender
    will be unable to pay in the foreseeable future.

[59]

The
    second proposition is that an offender defaults on payment of the surcharge
    only if the offender does not pay it within the time specified by the province
    or, if an extension of time has been granted, within the time specified in the
    order granting the extension. It is thus possible for an offender who lacks the
    means to pay the surcharge to continually apply for extensions of time that are
    reasonable in the circumstances, which must be granted, so as to never default.
    An offender can be subject to regulatory consequences, such as a licence
    suspension, only in the event of default. Civil proceedings against a
    defaulting offender are never available.

[60]

The
    third proposition is that an offender who defaults on the surcharge may be
    compelled to appear before the court at a committal hearing pursuant to s.
    734.7 of the
Code
. The state may make use of the enforcement
    mechanisms set out in Parts XVI and XVIII of the
Code
for this
    purpose.

[61]

The
    fourth and final proposition is that, although s. 734(4) of the
Code
deems that a defaulting offender shall be imprisoned, s. 734.7 prevents a
    defaulting offender who lacks the means to pay from being imprisoned.

[62]

This
    proposition is also supported by
Wu
. Binnie J. acknowledged the trial
    judges concern about not imprisoning offenders whose impecuniosity makes them
    unable to pay a mandatory fine. But he held that this concern was misplaced, as
    s. 734.7(1) of the
Code
provides that a court may not issue a warrant
    for the committal of an offender who defaults on payment of a fine unless the
    Crown proves that the offender has refused to pay without reasonable excuse.

[63]

The
    thrust of Binnie J.s reasoning was that an offenders poverty is a reasonable
    excuse under s. 734.7(1) preventing him from ever being subject to
    imprisonment for failure to pay a mandatory fine. He stated at para. 63 that
    the concern about overuse of jail for poor people for unpaid fines was an
    important impetus behind the enactment of s. 734.7(1). The Crown has the
    burden of establishing the offender has refused to pay the fine without
    reasonable excuse. Section 734.7(1) of the
Code
indicates that the
    purpose of imposing imprisonment in default of payment is to give serious
    encouragement to offenders with the means to pay a fine to make payment.
    Genuine inability to pay a fine is not a proper basis for imprisonment: para.
    3. See also
Lavigne
, at para. 47; and
R. v. Bourque
(2005),
    193 C.C.C. (3d) 485 (Ont. C.A.), at paras. 14-16.

[64]

Thus,
    an offender who defaults on paying the victim surcharge and who is unable to
    pay it cannot be imprisoned as a result of a committal hearing pursuant to s.
    734.7 of the
Code
. Inability to pay is a reasonable excuse under s.
    734.7(1)(a)(ii). The Crown will not be able to satisfy the court that an
    indigent offender who is truly unable to pay refused to pay the surcharge
    without reasonable excuse. The possibility of imprisonment acts as a legitimate
    and serious encouragement to pay the surcharge only for offenders who have the
    means to pay.

[65]

Against
    this backdrop, I will now address the ss. 7 and 12
Charter
challenges
    raised by the appellants against s. 737 of the
Code
.

(3)

Section 7 of the
Charter

[66]

Section
    7 of the
Charter
provides:

Everyone has the right
    to life, liberty and security of the person and the right not to be deprived
    thereof except in accordance with the principles of fundamental justice.

[67]

In
    order to demonstrate a violation of s. 7, the
Tinker
appellants must
    first show that s. 737 of the
Code
deprives them of life, liberty or
    security of the person. If s. 7 is engaged, they must then show that the
    deprivation in question is not in accordance with the principles of fundamental
    justice:
Carter v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1
    S.C.R. 331, at para. 55.

(iii)

Deprivation of Liberty:
    Imprisonment and Compulsion to Appear at a Committal Hearing

[68]

The
Tinker
appellants submit that s. 737 deprives them of liberty because
    it is possible for them to be imprisoned for defaulting on payment of the
    surcharge: see
Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486, at p.
    492. They also submit that the possibility for them to be compelled to appear at
    a committal hearing under s. 734.7 of the
Code
deprives them of
    liberty.

[69]

The
    surcharge regime does not deprive the
Tinker
appellants of liberty by
    exposing them to imprisonment if they are unable to pay the surcharge.
Wu
establishes that impecunious offenders cannot be imprisoned for failing to pay
    the surcharge. The Crown cannot satisfy a court that a warrant for committal
    should issue under s. 734.7 because genuine inability to pay is a reasonable
    excuse for not paying the surcharge. The court would commit a legal error under
Wu
by issuing the committal warrant in such circumstances. I note
    parenthetically that it was not argued before this court that the possibility
    of imprisonment for an offender who is able to pay, but who refuses to do so without
    reasonable excuse within the time provided for payment, amounts to a
    deprivation of liberty under s. 7 of the
Charter
.

[70]

However,
    I agree that the possibility of being compelled to appear at a committal
    hearing deprives the
Tinker
appellants of liberty. Apart from actual
    imprisonment, other physical acts compelled through the states coercive power
    also engage s. 7 liberty interests, such as state compulsion of individuals to
    be fingerprinted (
R. v. Beare; R. v. Higgins
, [1988] 2 S.C.R. 387, at
    p. 402) or give oral testimony in court (
Application under s. 83.28 of the
    Criminal Code (Re)
, 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 67). Section
    734.7(3) permits an offender who defaults on a surcharge to be potentially
    arrested or summoned to appear at a committal hearing. This amounts to state
    compulsion of physical acts that engages s. 7 of the
Charter
.

(iv)

Deprivation of Security of the Person: Psychological Stress

[71]

The
Tinker
appellants also submit that the imposition of the surcharge
    deprives them of security of the person because it causes them serious
    state-imposed psychological stress: see
R. v. Morgentaler
, [1988] 1
    S.C.R. 30, at p. 56. They say that, given their poverty and inability to pay,
    the surcharge subjects them to the stress of perpetual indebtedness, which may
    never be extinguished and may hang over them forever. It subjects them to an
    unending stigma of criminalization that hinders their efforts at rehabilitation
    and exacerbates their pre-existing marginalization. The only way they can avoid
    these consequences and pay the surcharge is by sacrificing the funds they need
    to pay for the necessaries of life.

[72]

I
    do not accept this submission. I accept that Mr. Tinker, Ms. Judge and Mr.
    Bondoc suffer some stress and anxiety from being subject to the surcharge when
    they do not have the means to pay it and suffer other forms of significant
    social hardship. However, as I shall explain, any stress they experience by
    reason of being unable to pay the surcharge does not rise to the level of
    depriving them of psychological security of the person under s. 7 of the
Charter
.

[73]

In
New Brunswick (Minister of Health and Community Services), v. G. (J.)
,
    [1999] 3 S.C.R. 46, at paras. 59-60, Lamer C.J. held that state-imposed
    psychological stress engages s. 7 only if it rises above the ordinary level or
    stress or anxiety that a person of reasonable sensibility, assessed from an
    objective perspective, would suffer as a result of the state action. It need
    not rise to the level of nervous shock or psychiatric illness, but it must be
    objectively out of the ordinary or else countless government initiatives could
    be challenged on the ground that they infringe the right to security of the
    person, massively expanding the scope of judicial review, and, in the process,
    trivializing what it means for a right to be constitutionally protected.

[74]

Despite
    the high threshold, the Supreme Court has held that psychological security of
    the person is engaged by: state-imposed barriers to accessing therapeutic
    abortion (
Morgentaler
); the criminalization of physician-assisted
    dying for grievously ill patients (
Rodriguez v. British Columbia (Attorney
    General)
, [1993] 2 S.C.R. 519); the removal of a child from parental
    custody (
G. (J.)
); state-imposed delays in accessing necessary medical
    treatment (
Chaoulli v. Quebec (Attorney General)
, 2005 SCC 35, [2005]
    1 S.C.R. 791); and the imposition of conditions that heighten the danger of the
    inherently risky but legal activity of prostitution (
Canada (Attorney
    General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101).

[75]

These
    decisions establish that for an incursion into psychological integrity to
    amount to a deprivation of security of the person, it must interfere with the
    personal autonomy, dignity or privacy of the individual in an intimate and
    profound way:
R. v. Transport Robert (1973) Ltée
(2003), 68 O.R. (3d)
    51 (C.A.), at para. 28. For example, in
Rodriguez
, Sopinka J. stated
    at p. 588:

[P]ersonal autonomy, at least with respect to the right to make
    choices concerning ones own physical and psychological integrity, and basic human
    dignity are encompassed within security of the person, at least to the extent
    of freedom from criminal prohibitions which interfere with these.

See also
Carter
, at paras. 64-68. Similarly,
    in
G. (J.)
, Lamer C.J. wrote at para. 61 that direct state
    interference with the parent-child relationship, through a procedure in which
    the relationship is subject to state inspection and review, is a gross
    intrusion into a private and intimate sphere.

[76]

In
    sum, state conduct reaches the high threshold for a deprivation of
    psychological security of the person only if it constitutes interference with
    an individual interest of fundamental importance, such as interference with
    profoundly intimate and personal choices of an individual, including the
    right to make decisions concerning ones body free from state interference or
    the prospect of losing guardianship of ones children:
Blencoe v. British
    Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307, at
    paras. 81, 83.

[77]

In
    my view, the imposition of the victim surcharge on the
Tinker
appellants does not interfere with an individual interest of fundamental importance.
    The choice about whether to pay the surcharge cannot be regarded as an interest
    that is akin to choices concerning ones own body or the interest in
    maintaining a private relationship with ones own child.

[78]

The
    stress that comes from being subject to long periods of indebtedness, in my
    view still does not disturb the
Tinker
appellants psychological
    integrity to the extent needed to reach the high threshold for engaging s. 7 of
    the
Charter
. It is an unfortunate fact that many Canadians are subject
    to long periods of indebtedness. Many of these people may be just as unable to
    discharge the debt due to impecuniosity, disability or other disadvantage as
    the appellants are, with the difference being that the debt was not incurred as
    a result of criminal activity. The anxiety associated with having an unpaid
    surcharge is therefore not entirely out of the ordinary in Canadian society. To
    hold otherwise would potentially result in the expansion of the scope of
    judicial review that Lamer C.J. cautioned against in
G.  (J.)
.

[79]

From
    an objective perspective, s. 737 of the
Code
does not force the
    appellants into a choice between paying the surcharge and paying for the
    necessaries of life, and it does not prevent the appellants rehabilitation or
    reintegration into society. An extension of time under s. 734.3 of the
Code
is always available, meaning that the appellants may never default on the
    surcharge. Although given their circumstances the appellants may experience
    difficulties in applying for an extension of time, an extension must be given.
    Because an application for an extension of time may be made by means of a
    simple document explaining that the offender does not have the means to pay
    immediately, the preconditions for obtaining one are not onerous. They are, for
    example, not as onerous as the preconditions for obtaining a therapeutic
    abortion  approval by the therapeutic abortion committee of an approved
    hospital  that were held to interfere with the emotional integrity and well-being
    of women in
Morgentaler
(p. 57). Likewise, the prolongation of
    indebtedness caused by obtaining continuous extensions of time does not deprive
    the appellants of an interest of fundamental importance.

[80]

Any
    anxiety derived from having an unpaid surcharge experienced by a person of
    reasonable sensibility is diminished when it is considered from an objective
    perspective. An offender cannot be imprisoned for failure to pay a surcharge if
    he or she lacks the means to pay and the surcharge cannot be collected by civil
    enforcement proceedings.

[81]

Moreover,
    the stigma of having a large unpaid surcharge is not sufficient to interfere
    with the appellants psychological integrity. This court rejected a similar argument
    in
Transport Robert
, which involved a challenge to the
    constitutionality of s. 84.1(5) of the
Highway Traffic Act
, R.S.O.
    1990, H.8. Section 84.1(5) creates an absolute liability offence for driving a commercial
    motor vehicle on a highway where a wheel becomes detached from the vehicle. Section
    84.1(3) imposes a fine on offenders of up to $50,000. This court held that the
    stigma of being convicted of the regulatory offence did not engage psychological
    security of the person even when combined with the possibility of a very
    significant fine. It stated at para. 28: This is simply not the kind of
    serious state-imposed psychological stress that is intended to be covered by
    security of the person. It is qualitatively different than the kinds of
    stresses that have been recognized in the cases. See also
Blencoe
, at
    para. 86. The same can be said of the stigma of having an unpaid victim
    surcharge.

[82]

I
    conclude that the surcharge regime in the
Code
engages the
Tinker
appellants liberty but not their security of the person. I turn now to
    consider whether the deprivation of liberty accords with the principles of
    fundamental justice.

(v)

Principles of Fundamental Justice: Overbreadth and Gross
    Disproportionality

[83]

The
    appellants submit that s. 737 of the
Code
is not fundamentally just
    under s. 7 of the
Charter
because it is overbroad and grossly
    disproportionate.

[84]

These
    principles of fundamental justice compare the rights infringement caused by
    the law with the objective of the law:
Bedford
, at para. 123. It is
    first necessary to identify the purposes of the surcharge regime in the
Code
to be able to then assess the relationship between these purposes and the means
    by which the regime attempts to pursue them  means that, as we have seen, include
    potentially engaging the
Tinker
appellants liberty interests: see
Carter
,
    at para. 73.

[85]

To
    ascertain the laws purposes in a s. 7
Charter
analysis, this court
    must consider statements of purpose in the legislation; the text, context and
    scheme of the law; and extrinsic evidence such as legislative history and
    evolution:
R. v. Moriarity
, 2015 SCC 55, [2015] 3 S.C.R. 485, at para.
    31. The Supreme Court summarized the guidelines for stating an impugned laws
    purposes in a s. 7
Charter
analysis in
R. v. Safarzadeh-Markhali
,
    2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 25-29.

(a)

The Two Purposes of
    the Surcharge Regime

[86]

There
    is no explicit statement of purpose in Bill C-37. However, drawing support from
    the text, context and scheme of the legislation, as well as extrinsic materials
    put before the court by the parties to this appeal, I would state the purposes
    of the regime as follows, bearing in mind the guidelines from
Safarzadeh-Markhali
:

1.

To rectify some of the harm done by criminal activity by raising funds
    for public services devoted to assisting victims of crime; and

2.

To hold offenders accountable to victims of crimes and to the community
    by requiring a contribution by them to these funds at the time of sentencing.

[87]

Section
    737(7) of the
Code
mandates that victim funds collected through
    payment of the surcharges are to be applied to provide assistance to victims of
    offences. When Bill C-37 was debated on first reading, Ms. Kerry-Lynne D.
    Findlay, Parliamentary Secretary to the Minister of Justice, described the uses
    to which victim fine surcharges are put in Ontario (
House of Commons Debates
, 41st Parl., 1st Sess., No. 146 (17 September 2012),
    at p. 10050)
:

In Ontario, surcharge revenue funds a wide range of services
    provided to victims of crime. There are 39 sexual assault and rape crisis
    centres, including centres that provide French-language services. They provide
    a 24-hour crisis and support line; group and one-on-one counselling;
    accompaniment to hospital, court or police; information and referral services;
    and public awareness sessions. The Ontario victim crisis assistance and referral
    services provide short-term assistance on a 24/7 basis to victims at the scene
    of a crime and make referrals to community services for longer-term assistance.
    With the consent of the victim, the police can call a highly trained team of
    volunteers to the scene. More than 50 victim crisis assistance and referral
    services sites are located throughout Ontario to deliver the victim quick
    response program. Surcharge revenues help to fund the Ontario victim support
    line, which provides a province-wide, toll-free information line in English and
    French. Surcharge revenues also fund the Ontario child witness project, which
    provides specialized preparation and support to child victims and/or witnesses
    and their caregivers. They work closely with the victim/witness assistance
    programs in their communities.

[88]

During
    questioning, Ms. Findlay stated, at p. 10051:

These are victim surcharges. They are meant to hold offenders
    accountable, meant for them to think on what they have done in terms of hurting
    the life in some way of their victims and to go directly to their services.

[89]

Mr.
    Robert Goguen, also a Parliamentary Secretary to the Minister of Justice, added
    the following, at p. 10059:

Victim surcharges form part of an offenders sentence and they
    are consistent with the sentencing principles in the criminal code. They
    provide reparations for the harm done to victims and to the community and
    promote a sense of responsibility in offenders.

[90]

Mr.
    Gougen spoke again on second reading of Bill C-37:
House of Commons Debates
, 41st Parl., 1st Sess., No. 196 (11 December 2012),
    at 1520.
He explained that the inclusion of the surcharge in the
Code
dates back to 1988. The provisions originally gave judges discretion to waive
    the surcharge in cases of undue hardship. Amendments to the regime were made in
    2000 in response to a report of the Standing Committee on Justice and Human
    Rights in 1998 entitled Victims Rights - A Voice, not a Veto. Mr. Gougen
    stated, at p. 13173:

The government response to that report described the original
    victim surcharge provisions as having two goals.
First was to make each
    offender accountable in a small way to victims of crime as a group. Second was
    to generate revenue for victim services
. [Emphasis added.]

[91]

The
Tinker
appellants submit that a correct statement of the purpose of
    the surcharge regime in the
Code
must account for the fact that Bill
    C-37 removed judicial discretion to decline to impose the surcharge on
    offenders in cases of undue hardship and instead made the imposition mandatory.
    They say that this court must not focus simply on the purposes of imposing the
    surcharge
per se
.

[92]

In
    my view, adopting this approach would not alter the conclusion I have reached
    above regarding the dual objectives of the surcharge regime. The legislative
    debates that the parties put before this court amply demonstrate that the
    government saw Bill C-37s removal of judicial discretion to impose the
    surcharge as necessary for the regime to achieve its two original purposes more
    effectively than it had previously. The government appears to have been
    concerned that the surcharge was waived too frequently on the basis of undue
    hardship to the offender. The result was that the surcharge provisions were perceived
    as having fallen short of the governments initial expectations for them.

[93]

For
    example, the federal Department of Justice provided data from the Canadian
    Centre for Justice Statistics (Statistics Canada) indicating that, for the
    fiscal year 2009/2010, the surcharge had been imposed in 13% of cases in
    Ontario and 29% of the time in British Columbia. The government appears to have
    seen these rates as too low, making the surcharge regime ineffective at
    achieving its original purposes, and that perception is what provided the
    impetus for making the surcharge in the
Code
mandatory. Indeed, at an
    October 23, 2012 meeting of the Standing Committee on Justice and Human Rights
    convened to discuss Bill C-37, the Minister of Justice and Attorney General of
    Canada, The Honourable Rob Nicholson, stated that the purpose of
removing the option to waive the surcharge
 was to
    promote a sense of responsibility in offenders for their actions, and to make offenders
    accountable to the victims whose lives they have affected: Canada, House of
    Commons, Standing Committee on Justice and Human Rights,
Minutes of
    Proceedings
, 41st, 1st Sess., No. 46, at p. 1 (emphasis added).

[94]

Thus,
    Bill C-37s removal of discretion to waive the surcharge had the same two
    purposes as creating a mandatory surcharge initially in 1988. Those two
    purposes were discussed on second reading of the bill that would first introduce
    the surcharge into the
Code
by The Honourable Ray Hnatyshyn, Minister
    of Justice and Attorney General of Canada, stated (
House of Commons Debates
, 33d Parl., 2d Sess., Vol. 9 (19 November 1987), at p.
    10973):

The victim fine surcharge is one
    of the most important features of this Bill. This proposal further recognizes
    the entitlement of victims of crime to reparation, and the need for offenders
    to make amends for the wrongs suffered by their victims.
The purpose of the
    victim fine surcharge is to require the offender to provide redress not only
    for the harm done to the victim but to the community at large. The surcharge
    will assist offenders in the process of accepting responsibility for their
    crimes by requiring them to contribute to victim services within each province
    as part of the debt they owe to society
. [Emphasis added.]

[95]

I
    also observe that s. 3(3) of Bill C-37 increased the quantum of the victim
    surcharge from 15% to 30% of a fine imposed by the court as part of an
    offenders sentence and, where no fine is imposed, from $50 to $100 for summary
    conviction offences and from $100 to $200 for indictable offences. These
    increases suggest that the surcharge regime as it currently appears in the
Code
aims to rectify what the government perceived as previous ineffectiveness in achieving
    the two original purposes of imposing the surcharge.

[96]

Like
    making the surcharges mandatory, increasing their amount, coupled with the
    procedures for enforcing them in the Fines and Forfeiture provisions of the
Code
,
    are the means in Bill C-37 by which those two purposes are advanced. As held
    above, the effect of these measures is to potentially deprive the appellants of
    their liberty interests under s. 7 of the
Charter
. The question is
    whether the deprivation is fundamentally just.

(b)

Overbreadth

[97]

The
    principle of fundamental justice under s. 7 of the
Charter
that a law must
    not be overbroad prohibits laws that [go] too far by denying the rights of
    some individuals in a way that bears no relation to [the laws] object:
Carter
,
    at para. 85. It forbids situations where there is an absence of a connection
    between the infringement of rights and what the law seeks to achieve  the
    situation where the laws deprivation of an individuals life, liberty, or
    security of the person is not connected to the purpose of the law:
Bedford
,
    at para. 108. Although a law may deny the rights of some individuals in some
    cases in a manner that bears a rational connection to the purposes of the law,
    it is overbroad if it denies the rights of other individuals in some other cases
    in a manner that has no rational connection to the laws purposes:
Bedford
,
    at paras. 112-113. See also
R. v. Michaud
, 2015 ONCA 585, 127 O.R.
    (3d) 81, at para. 70, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No.
    450.

[98]

The
Tinker
appellants submit that s. 737 of the
Code
is overbroad
    both in relation to them and in reasonable hypothetical cases. I accept that
    this court may undertake a s. 7 overbreadth inquiry by examining hypothetical
    cases of an impugned laws application: see
R. v. Appulonappa
, 2015
    SCC 59, [2015] 3 S.C.R. 754, at para. 28.

[99]

The
Tinker
appellants submit that this court should consider the effect of
    the surcharge on the offender at issue in the
Michael
decision. Mr.
    Michael was a 26-year-old Inuit man who was convicted of nine summary
    conviction offences, including theft, public mischief, breach of probation and
    assaulting a police officer. He was subject to a $900 surcharge. At the time of
    sentencing, he was addicted to drugs and alcohol, was unemployed and was
    homeless. He received social assistance of $250 a month. He had no possessions.
    His family had a history of alcohol abuse and he was estranged from them at an
    early age. He dropped out of school in Grade 10. He lost his ability to speak
    Inuktitut and all connection with his Aboriginal community. The sentencing
    judge found that Mr. Michael could not and likely would not ever be able to pay
    the surcharge.

[100]

In my view, the
    effect of s. 737 of the
Code
is ultimately the same for the liberty
    interests of the
Tinker
appellants and for Mr. Michael. Each of these
    offenders could be compelled to appear in court at a committal hearing pursuant
    to s. 734.7 of the
Code
using the methods in Parts XVI and XVIII of
    the
Code
, such as an arrest warrant or a summons to appear. Is the
    deprivation of liberty overbroad for any of them?

[101]

I am unable to
    conclude that the deprivation bears no rational connection at all to the
    purposes of imposing the victim surcharge on them under s. 737 of the
Code
.
    A law that is overbroad operates arbitrarily in the cases where it overreaches:
Michaud
, at para. 70. The key question is whether there are any cases in
    which there would be no connection at all between the laws means and ends. This
    standard is not easily met:
Bedford
, at para. 119.

[102]

There is at
    least some rational connection between compelling even impecunious offenders,
    such the
Tinker
appellants or Mr. Michael, to appear at a committal
    hearing and the purposes of the surcharge regime outlined earlier. At the
    hearing, the Crown must demonstrate that the offender refused to pay the
    surcharge without reasonable excuse. The court must inquire into whether the
    offender has the means to pay, and the offender may offer evidence in his or
    her defence of an inability to pay as constituting a reasonable excuse.

[103]

This process is
    rational in light of the objectives of the surcharges provisions. First, it was
    rational for Parliament to conclude that through that process it could be
    determined whether an offender has the funds available for the provinces to use
    to put towards victim services. Compelling the offender to appear at the
    hearing to ascertain his or her financial circumstances is necessary for this
    determination. Second, through the process of a committal hearing offenders who
    have defaulted on paying a surcharge are called to account to the community for
    why they have refused to pay, and they are asked to explain why they refused.
    Calling them to account in this fashion, in the open and public forum of the
    court, and inquiring into their excuse for refusing to pay acts as a reminder
    of the offenders accountability to victims of crime.

[104]

The
Tinker
appellants submit that imposing the surcharge on an indigent from whom the fine
    can never be collected bears no relation the objective of raising public
    revenue to put towards victim services. However, this submission overlooks the
    actual engagement of s. 7 interests in question here. The appellants liberty
    is engaged by the process of a committal hearing under s. 734.7 of the
Code
.
    The end result of a committal hearing is not to collect on an outstanding
    surcharge payment but to determine whether a warrant for the defaulting
    offenders committal should be issued by inquiring into the offenders excuse
    for refusing to pay. The process thus understood is rationally connected to the
    objective of raising funds for victim services.

[105]

In any event,
    even if funds cannot be collected from an impecunious offender who is compelled
    to appear at the committal hearing, requiring him or her to appear in open
    court at such a hearing is rationally connected to instilling a sense of
    responsibility or accountability in the offender for the harms he or she caused
    to victims and to the community.

[106]

I therefore
    conclude that s. 737 of the
Code
does not deprive the
Tinker
appellants or Mr. Michael of liberty in an overbroad fashion.

(c)

Gross
    Disproportionality

[107]

The principle of
    fundamental justice that a law must not be grossly disproportionate prohibits
    laws whose effects on s. 7 interests, although rationally connected to the
    laws objective, are so severe or serious as to be totally out of sync with
    the objective of the measure and cannot rationally be supported:
Bedford
,
    at para. 120. It describes legislative responses to a problem that are so
    extreme as to be disproportionate to any legitimate government interest:
Canada
    (Attorney General) v. PHS Community Services Society
, 2011 SCC 44, [2011]
    2 S.C. 134, at para. 133. The inquiry into gross disproportionality under s. 7
    of the
Charter
balances the negative effects on an individual against
    the purpose of the law, not the societal benefit that might flow from the law:
Bedford
, at para. 121.

[108]

In
Carter
,
    at para. 89, the Supreme Court stated: The standard is high: the laws object
    and its impact may be incommensurate without reaching the standard for
gross
disproportionality (emphasis in original).

[109]

More recently,
    this court applied the principle of gross disproportionality under s. 7 of the
Charter
in
Thompson v. Ontario (Attorney General)
, 2016 ONCA 676, 352 O.A.C.
    336. At issue were provisions of the
Mental Health Act
, R.S.O. 1990,
    c. M.7, that permitted a person who met the criteria for involuntary committal
    to be ordered to undergo a comprehensive plan of treatment in the community
    rather than being detained in a mental health facility. It was conceded that
    the statutory regime infringed the liberty and security of the person interests
    of those to whom it applied. But this court held that it did not do so in a
    grossly disproportionate manner.

[110]

Sharpe J.A.
    acknowledged the findings of the application judge that community treatment
    orders reduced the incidence of homelessness, violence and criminal conduct
    among persons subject to them. They also allowed those who did not recognize
    the need for treatment to maintain a connection with mental health services,
    and they were individualized and tailored to the mentally ill persons
    circumstances. Sharpe J.A. held at para. 45: Given the individually tailored
    nature of the legislative regime and the significance of the public health
    objectives, it cannot be said that the legislative response to the public
    health problem is extreme, let alone so extreme as to be grossly
    disproportionate.

[111]

Following the
    Supreme Courts comments in
Carter
and this courts reasons in
Thompson
,
    in the present case this court must measure the severity of the deprivation of
    the
Tinker
appellants liberty against the importance or
    significance of the purposes of the surcharge provisions to determine whether
    that deprivation is so extreme that it cannot be rationally supported.

[112]

I consider first
    the severity of the deprivation of liberty.

[113]

The appellants,
    and hypothetical offenders in similar circumstances, may be compelled to appear
    at a s. 734.7 committal hearing upon default of paying the surcharge. At the
    most severe level, there is potential for them to be arrested without a warrant
    by a peace officer and detained pending committal proceedings under s. 495(1)
    of the
Code
. If they do not meet the conditions for release in s. 497,
    the duration of the detention may vary based on the length of time it takes for
    the proceeding to conclude.

[114]

Having said
    this, not all deprivations of liberty are of the same order of magnitude. In my
    view, a requirement that an offender appear in court to answer an allegation
    that he or she has refused to make a surcharge payment without a reasonable
    excuse must be construed as a less severe deprivation of liberty than, for
    example, being sentenced to a term of incarceration or being unable to make
    fundamental personal choices concerning ones body and health. By comparison to
    these other deprivations, it is closer to the less serious end of the spectrum
    of severity.

[115]

I turn secondly
    to the importance or significance of the purposes of the surcharge regime in
    the
Code
.

[116]

Few would deny
    that raising funds to support victims of crime is an important objective for
    the regime to pursue. This objective bears some similarity to that which
    underlies s. 738(1) of the
Code
, which empowers a court to order an
    offender to pay restitution to a victim of the offenders crime. When
    considering the predecessor to s. 738(1) in
R. v. Zelensky
, [1978] 2
    S.C.R. 940, at pp. 952-953, Laskin C.J. cited the following passage from a
    report of the Law Reform Commission of Canada to illustrate the importance of
    restitution orders:

Recognition of the victims needs underlines at the same time
    the larger social interest inherent in the individual victims loss. Thus,
    social values are reaffirmed through restitution to victim. Society gains from
    restitution in other ways as well. To the extent that restitution works toward
    self-correction, and prevents or at least discourages the offenders committal
    to a life of crime, the community enjoys a measure of protection, security and
    savings. Depriving offenders of the fruits of their crimes or ensuring that
    offenders assist in compensating victims for their losses should assist in
    discouraging criminal activity. Finally, to the extent that restitution
    encourages society to perceive crime in a more realistic way, as a form of
    social interaction, it should lead to more productive responses not only by
    Parliament, the courts, police and correctional officials but also by ordinary
    citizens and potential victims.

The victim surcharge under s. 737 of the
Code
of course differs from restitution orders under s. 738(1) in that funds
    collected from the surcharge are put into provincial services designed to
    benefit victims of fine generally, whereas restitution orders require an
    offender to make a payment to the specific victim of his or her own offence:
    see
R. v. Crowell
(1992), 76 C.C.C. (3d) 413 (N.S. C.A.), at p. 418;
    and
R. c. Cloud
, 2016 QCCA 567, 340 C.C.C. (3d) 547, at para. 48.
    Nonetheless, in my view the comments cited by Lamer C.J. in
Zelensky
also serve to illustrate the importance of the goal pursued by the victim
    surcharge.

[117]

Equally
    important is the second purpose of the surcharge regime  to enhance the
    accountability of offenders to victims and to the community. I note that the
    principles and purposes of sentencing set out in s. 718 of the
Code
include the objective of instilling a sense of responsibility in offenders,
    and acknowledgment of the harm done to victims or to the community.

[118]

Comparing the
    severity of the deprivation of liberty created by s. 737 of the
Code
to the importance of the purpose of the surcharge provisions, I conclude that
    the deprivation is not grossly disproportionate contrary to the principles of
    fundamental justice under s. 7 of the
Charter
. The potential for the
    appellants to be arrested and compelled to appear at a committal hearing, which
    is a deprivation of relatively minimal seriousness, is rationally supportable
    in light of the high importance of the objectives of the surcharge provisions.
    The severity of these effects is not so totally out of sync with these
    objectives that Parliament is culpable for a failure of rationality.

[119]

This is not a
    case like
PHS
. In that case, the Supreme Court held that the Minister
    of Healths failure to grant an exemption from drug possession offences to
    clients of a safe-injection site was grossly disproportionate to the state
    objective of taking a uniform stance on the prohibition of drug possession. Refusing
    the exemption exposed the clients to life-threatening medical dangers, and the
    safe-injection site save[d] lives. Its benefits have been proven. There has
    been no discernable negative impact on the public safety and health objectives
    of Canada during its eight years of operation: para. 133. In the present case,
    the deprivation of liberty faced by the appellants by potentially being
    compelled to appear at a s. 734.7 committal hearing is not as severe as the s.
    7 deprivations faced by the clients in
PHS
, while the significance of
    the objectives of the surcharge is arguably higher than the state objective in
    question in
PHS
.

[120]

Finally, I will
    comment on an issue raised by the parties and grappled with by the courts below
    before turning to s. 12 of the
Charter
. The above conclusion that the
    surcharge provisions in the
Code
are not grossly disproportionate
    under s. 7 of the
Charter
does not necessitate any conclusion about
    whether they are grossly disproportionate under s. 12. I acknowledge that ss. 7
    and 12 must be read consistently with each other so as not to render either of
    their constitutional protections redundant:
R. v. Lloyd
, 2016 SCC 13,
    [2016] 1 S.C.R. 130, at para. 41. Specifically, the standard of proportionality
    under s. 7 cannot be construed as any lesser than the standard under s. 12: see
R. v. Malmo-Levine
, 2003 SCC 74, [2013] 2 S.C.R. 571, at para. 160;
    and
Safarzadeh-Markhali
, at para. 72.

[121]

However, the
    gross disproportionality analysis under each guarantee is distinct. The
    analysis under s. 7 assesses the relationship between an impugned laws means
    and its ends to determine whether the legislature is guilty of a failure of
    instrumental rationality, in that the law is not a rational means to achieve
    its objective and so is dysfunctional in terms of its own objective:
Bedford
,
    at para. 107. By contrast, as explained below, the analysis under s. 12
    assesses the relationship between actual state treatment of an individual and
    what would be appropriate treatment. It looks at whether the extent of the
    departure from what would be appropriate is abhorrent, intolerable or
    outrageous.

[122]

In my view,
    these analyses are sufficiently distinct to justify addressing s. 12
    notwithstanding my conclusion on s. 7 above.

(4)

Section 12 of the
Charter

[123]

Section 12 of
    the
Charter
provides:

Everyone has the right not to be subjected to any
    cruel and unusual treatment or punishment.

[124]

Many of the
    appellants submissions before the courts below and on appeal are devoted to
    the issue of whether the surcharge imposed under s. 737 of the
Code
constitutes punishment under s. 12 of the
Charter
. The Crown takes
    the position that this is a non-issue, as the actions of the state in relation
    to an offender who does not pay the surcharge clearly constitute treatment under
    s. 12.

[125]

I assume for the
    purposes of this appeal that the imposition of the surcharge and the measures
    available to enforce payment amount to treatment. It is unnecessary to
    determine whether the surcharge amounts to punishment under s. 12 or whether
    the test for punishment under s. 11(i) of the
Charter
developed by the
    Supreme Court in
R. v. K.R.J.
, 2016 SCC 31, [2016] 1 S.C.R. 906, at
    para. 41, also applies in the s. 12 context. In
Rodriguez
, at p. 611,
    the Supreme Court held that the criminal prohibition on medical assistance in
    dying did not constitute treatment under s. 12, but made the following helpful
    comment about the standard to be met:

There must be some more active state process in operation,
involving
    an exercise of state control over the individual
, in order for the state
    action in question, whether it be positive action, inaction or prohibition, to
    constitute treatment under s. 12. [Emphasis added.]

The imposition of the victim surcharge on the
    appellants by the courts below, as mandated by s. 737(1) of the
Code
, arguably
    involved an exercise of state control over the individual. As incarceration
    is a possibility where an offender fails to pay the surcharge without
    reasonable excuse, and an offender may be compelled to attend court to explain
    why he has not paid.  This court has noted that the same test for an
    infringement of s. 12 of the
Charter
applicable with respect to
    punishment is also applicable with respect to treatment:
R. v. Olson
(1987), 62 O.R. (2d) 321 (C.A.), at p. 336, affd, [1989] 1 S.C.R. 296; and
R.
    v. Dyck
, 2008 ONCA 39, 90 O.R. (3d) 409, at para. 85. I turn to this test
    next.

(i)

The Test for Infringement

[126]

The test for
    whether treatment is cruel and unusual under s. 12 asks whether it is grossly
    disproportionate to what would be appropriate treatment. This is a high bar,
    as the treatment must be more than merely excessive:
Lloyd
, at para.
    24. See also
R. v. Smith
, [1987] 1 S.C.R. 1045, at p. 1072. Treatment
    is cruel and unusual if it is so excessive as to outrage standards of decency,
    such that Canadians would find it abhorrent or intolerable:
R. v.
    Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

[127]

The Supreme
    Court has developed an analytical framework for assessing the constitutionality
    of mandatory minimum imprisonment sentences under s. 12. Given that the
    surcharge under s. 737 of the
Code
differs from a mandatory
prison
sentence only in that it more closely resembles a
    mandatory minimum
fine
, in my view that framework
    is the correct one to apply in the case at hand.

[128]

First, the court
    must determine what would be a proportionate sentence for the appellants in
    this case, having regard to the nature of the appellants offences and the
    circumstances of the offender. Second, the court must determine whether the
    imposition of the surcharge under s. 737 is so grossly disproportionate to a
    fit and proportionate sentence that Canadians would find it abhorrent,
    intolerable, and outrageous to standards of decency: see
R. v. Nur
,
    2015 SCC 15, [2015] 1 S.C.R. 773, at para. 46; and
Lloyd
, at para. 23.

[129]

In assessing
    whether the surcharge is grossly disproportionate, this court must examine not
    only the impact of the surcharge on the appellants, but also the impact of the
    surcharge upon others within the reasonably foreseeable reach of the law:
Nur
,
    at para. 63. The
Tinker
appellants, Mr. Eckstein and Mr. Larocque
    submit that this court should consider the surcharges impact on the offender
    at issue in
Michael
in addition to the impact on them. I accept this
    submission.

[130]

The gross
    disproportionality analysis under s. 12 is concerned primarily with the effects
    of the surcharge on the appellants and on Mr. Michael:
Smith
, at p.
    1072. Other factors which may inform the analysis are whether the treatment is
    necessary to achieve a valid penal purpose, whether it is founded on recognized
    sentencing principles and whether there exist valid alternatives to the
    treatment imposed:
R. v. Goltz
, [1991] 2 S.C.R. 485, at p. 500.

(ii)

Application of the Test

[131]

I will first
    consider what would be a proportionate sentence for the appellants and for Mr.
    Michael, having regard to their individual circumstances and the nature of
    their offences.

[132]

The sentencing
    judge in
Tinker
regarded the imposition of the surcharge as
    inappropriate in light of the nature of the
Tinker
appellants
    offences and their circumstances. He would not have imposed the surcharge if he
    was not required to do so by s. 737 of the
Code
. I am prepared to
    assume that the same would also be true of Mr. Larocque and the hypothetical
    offender Mr. Michael. These offenders are impecunious, as well as being
    physically or mentally disabled, unemployed, addicted to substances and
    homeless. Some of their convictions are for relatively minor offences such as
    breach of probation or mischief. A proportionate sentence would not have
    included a surcharge that a sentencing judge concluded would cause undue
    hardship.

[133]

This conclusion
    is reinforced by s. 734(2) of the
Code
, which provides:

Except when the punishment for an offence includes a minimum
    fine or a fine is imposed in lieu of a forfeiture order,
a court may fine an
    offender under this section only if the court is satisfied that the offender is
    able to pay the fine
or discharge it under section 736. [Emphasis added.]

Under this provision, the party seeking to have a fine
    imposed on an offender at sentencing, usually the Crown, has the burden to
    satisfy the court on a balance of probabilities that the offender is able to
    pay the fine. The opposing party may tender evidence of the offenders
    inability to pay: see
R. v. Topp
, 2011 SCC 43, [2011] 3 S.C.R. 119, at
    paras. 21-24;
Wu
, at para. 47; and
R. v. Mahmood
, 2016 ONCA
    74, at para. 22.

[134]

I find it
    unlikely that in this case the Crown would have been able to establish that the
Tinker
appellants, Mr. Larocque or Mr. Michael would have the means to
    pay a fine. Assuming that the surcharge can be analogized to a fine imposed at
    the time of sentencing, it would be disproportionate for it to be imposed on
    these offenders when following the generally accepted sentencing principles
    governing fines codified in s. 734(2) of the
Code
. To impose the
    surcharge on a mandatory basis at sentencing irrespective of the offenders
    means to pay is to depart from these principles.

[135]

Next, I will
    consider whether the imposition of the surcharge on the impecunious appellants and
    Mr. Michael, calculated at $100 for each summary conviction offence and $200
    for each indictable offence they were convicted of, is grossly
    disproportionate. This amounted to $200 for Mr. Tinker, Ms. Judge and Mr.
    Bondoc, $300 for Mr. Meade, $700 for Mr. Larocque and $900 for Mr. Michael.

[136]

The
Tinker
appellants submit that, with the imposition of the surcharge, the offenders at
    issue here are subject to the stress of an unpaid fine hanging over their heads
    when they do not have and will never be able to acquire the means to pay it. They
    also submit that the offenders are subject to the ongoing stigma of
    criminalization stemming from their inability to discharge the debt obligation
    imposed during their sentencing. I accept these submissions, but I reiterate
    that stress, anxiety and stigma the offenders face are not of such a degree of severity
    that would engage psychological security of the person under s. 7 of the
Charter
.

[137]

However, I do
    not accept the submission made by the
Tinker
appellants and Mr.
    Eckstein that the effect of an unpaid surcharge is to prevent the
    rehabilitation and reintegration of the offenders at issue into society and to
    force them to choose between paying the surcharge and paying for the
    necessaries of life. The offenders can obtain extensions of time to pay without
    going through an arduous process. They must be given extensions that are
    reasonable in the circumstances because they are unable to pay the surcharge.
    They cannot be imprisoned for refusing to pay, as their indigence is a
    reasonable excuse. Civil proceedings to collect the surcharge are not
    available. These facts attenuate the negative effects of the mandatory
    surcharge on the offenders.

[138]

The
Tinker
appellants submit that the ability to obtain an extension of time to pay does
    not ameliorate the negative effects of the mandatory surcharge. However, this
    submission is inconsistent with this courts decision in
Pham
. The
    appellants in
Pham
were found guilty of possessing 1,200 kilograms of
    contraband tobacco and were sentenced to a mandatory minimum fine under the
Excise
    Act
. The quantum was $0.11 multiplied by the number of grams of contraband
    tobacco possessed, which was calculated to be $154,000. They challenged the
    fine as being grossly disproportionate under s. 12 of the
Charter
.

[139]

This court
    rejected the challenge, noting that three other provincial appellate courts had
    rejected the same challenge: see
R. c. Calvin
(1996), 3 C.R. (5th) 96
    (Que. C.A.);
R. v. Desjardins
(1996), 182 N.B.R. (3d) 321 (C.A.); and
R.
    v. MacFarlane
(1997), 121 C.C.C. (3d) 211 (P.E.I. C.A.). Goudge J.A. stated
    at para. 17 that in the s. 12 analysis the impact of the very substantial
    financial liability for the appellants was attenuated by their right under s.
    734.3 of the
Criminal Code
to apply for an extension of time beyond
    the two-year period imposed by the trial judge. He added that the impact was
    further attenuated by s. 745.7 of the
Code
by permitting a warrant
    for committal to be issued only where the offender has refused to pay the fine
    without reasonable excuse.

[140]

The fine at
    issue in
Pham
was much larger than the amounts of the surcharge at
    issue in the case at hand. Admittedly, the decision is partly distinguishable.
    Goudge J.A. wrote at para. 19 that the minimum fine in the
Excise Act
was not grossly disproportionate because the amount of the fine was
    proportionate to the amount of contraband possessed by an offender:

In my view, however, the most important consideration in the s.
    12 analysis is the direct connection between the quantity of the illegal
    substance possessed and the size of the fine. Those who possess larger
    quantities are clearly players in larger criminal enterprises with larger
    illegal profits for whom larger minimum fines are rationally founded. The use
    of this factor, which is both objective and reasonable, to regulate the size of
    the minimum fine ensures that the punishment will not be grossly
    disproportionate.

The surcharge provisions in the
Code
, by
    contrast, do not exhibit the same kind of tailored proportionality, as the
    quantum of the surcharge is not proportionate to the gravity of the crimes
    committed by the offenders, except to the limited extent of distinguishing
    between indictable and summary conviction offences. The surcharge is, however,
    proportionate to the number of the offenders convictions.

[141]

There are
    clearly valid alternatives to the imposition of the surcharge on the offenders
    on question. One such alternative, which had been in place between 1988 and
    2013 before the introduction of Bill C-37, was to give sentencing judges
    discretion to waive the surcharge if imposing it would cause an offender undue
    hardship.

[142]

Having said
    that, I would reiterate that the mandatory imposition of the surcharge does go
    some way towards achieving the valid penal purpose of holding offenders
    accountable to victims of crime and the community. As well, although it departs
    from the recognized sentencing principle that a fine should be imposed on an
    offender at sentencing only if the offender has the means to pay it, it is
    nonetheless founded on the separate recognized sentencing principle codified in
    s. 718(f) of the
Code
of inculcating a sense of responsibility in
    offenders, and acknowledgment of the harm done to victims or to the community.

[143]

I conclude that,
    given the attenuated effects of the mandatory surcharge in s. 737 of the
Code
on the offenders under consideration here and the surcharge regimes pursuit of
    valid sentencing objectives, the surcharge is not grossly disproportionate to
    what would be a proportionate sentence for these offenders. I accept that it is
    disproportionate, but I cannot go so far as to conclude that it meets the high
    standard of being so excessive as to be abhorrent, intolerable or outrageous to
    Canadians sense of decency.

C.

DISPOSITION

[144]

The frustration
    of sentencing judges who have balked at the seeming futility of imposing victim
    fine surcharges that are beyond the means of an offender in the foreseeable
    future is understandable, but the surcharge regime does not amount to a
    violation of s. 7 or s. 12 of the
Charter
.
[3]

[145]

For the
    foregoing reasons, I would dismiss the appeals.

G. Pardu J.A.

I agree Paul Rouleau
    J.A.

I agree K. van
    Rensburg J.A.

Released: June 30, 2017

[1]

The term or appearing between paragraphs (i) and (ii) of s.
    734.7(1)(b) must be read conjunctively:
R. v. Wu
, 2003 SCC 73, [2003] 3
    S.C.R. 530, at paras. 61-63. This means that under s. 734.7 the court must be
    satisfied both that a license suspension or revocation for an offender has
    defaulted on a surcharge is inappropriate and that the offender has refused to
    pay the surcharge without reasonable excuse before a warrant for the offenders
    committal can be issued.

[2]

The
Tinker
appellants also challenged s. 737 of the
Code
on the ground that it was
ultra vires
the legislative authority of
    Parliament because it amounted to direct taxation within the provinces, a
    subject of power exclusively reserved for the provinces under s. 92 of the
Constitution
    Act, 1867
. The sentencing judge declined to consider this ground, it was
    not raised before the SCAC and it is not raised before this court.

[3]
Parliament has introduced legislation to restore the discretion to waive the
    surcharge where the obligation would cause undue hardship: Bill C-28,
An Act
    to amend the Criminal Code (victim surcharge)
, 1st Sess., 42nd Parl., 2016,
    cl. 2 (first reading 21 October 2016).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2017 ONCA 482

DATE: 20170612

DOCKET: C62622/M47609

Tulloch, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Jenny Tran

Appellant/Applicant

Jenny Tran, acting in person

Holly Loubert, for the respondent

Heard and released orally: June 6, 2017

On appeal from the order of Justice James MacPherson of
    the Court of Appeal for Ontario, dated September 6, 2016.

REASONS FOR DECISION

[1]

At the moment the appellant is represented by
    counsel on the appeal, although not on the motion before the panel this
    morning. The motion is to review the decision of MacPherson J.A. dated
    September 6, 2016, who denied the appellant an extension of bail.

[2]

The appellant was released from custody on
    February 16, 2017.

[3]

The appellant moves before this panel for two
    items of relief: first, an order s. 684 of the
Criminal Code
, for the appointment of counsel for the purpose of arguing the
    review of Justice MacPhersons order. Second, she seeks an adjournment of this
    review, pending the appointment of counsel. She relies on a medical opinion
    that she lacks fitness to argue the matter herself.

[4]

In light of the appellants release by Vanier Institute,
    the review of Justice MacPhersons order would appear to be moot. As a result,
    we dismiss the application that the appellant brings this morning for a s. 684
    order and for an adjournment of the review of Justice MacPhersons order.

[5]

The appellants persistence in seeking various
    remedies in the face of an appeal that is the hands of counsel, is vexatious.
    She has consumed much more than her fair share of judicial and other resources.
    We therefore order that the appellant will not be permitted to pursue additional
    motions or applications to this court without the permission in writing of a
    member of this court, based on a written request by the appellant no more than
    three pages in length without any additional material. Counter staff are
    instructed not to accept any material from the appellant that is inconsistent
    with this direction.

[6]

This direction does not apply to the appellants
    counsel.

M. Tulloch J.A.

P. Lauwers J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tmenov, 2017 ONCA 454

DATE: 20170602

DOCKET: C63054

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tamerlan Tmenov

Appellant

Jacob Stilman, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: May 29, 2017

On appeal from the sentence imposed on November 17, 2015
    by Justice H. Chisvin of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to counts of break and enter to commit
    theft and break and enter with intent. After a joint submission he was
    sentenced to a suspended sentence with two years probation. The sentencing
    judge credited the appellants pre-sentence custody of 132 days at a rate of
    1.5:1 resulting in a credit of 198 days. The result was that the appellant, who
    is a convention refugee, was ordered deported and, because he had received a
    custodial sentence greater than 180 days (as interpreted by certain decisions
    of the Federal Court) he is barred from appealing the deportation order.

[2]

The fresh evidence admitted on appeal with the consent of the Crown
    demonstrates that trial counsel did not appreciate the immigration consequences
    of attributing enhanced credit to the period of pre-sentence custody. As these
    consequences were not brought to the attention of the sentencing judge or taken
    into consideration in the appellants sentence, this court is entitled to
    intervene:
R. v. Pham
,
2013 SCC 15;
R. v. Nassri
, 2015 ONCA 316.

[3]

Accordingly, on consent of the Crown, the sentence appeal is allowed.
    The credit for pre-sentence custody is reduced by 19 days to 179 days. The
    appellants sentence is therefore varied to a suspended sentence with two
    years probation, with credit for 179 days pre-sentence custody. The s. 109
    weapons prohibition and DNA order remain in place.

E.A.
    Cronk J.A.

R.A.
    Blair J.A.

K. van
    Rensburg J.A


COURT OF APPEAL FOR ONTARIO

CITATION: Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017
    ONCA 556

DATE: 20170629

DOCKET: M47680 (C61630)

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Ravenda Homes Ltd.

Plaintiff

and

1372708 Ontario Inc. and Vaughn Gibbons

Defendants

AND BETWEEN

1372708 Ontario Inc.

Plaintiff by
    Counterclaim

(Respondent/Moving
    Party)

and

Ravenda Homes Ltd.
and John Ravenda

Defendants by
    Counterclaim

(Appellant/Responding
    Party)

Robert C. Harason, for the moving party

Peter H. Griffin, for the responding party

Heard and released orally: June 28, 2017

REASONS FOR DECISION

[1]

Justice Sharpe sitting as a chambers judge denied 1372708 Ontario Inc.s
    request to order security for costs against Ravenda Homes Ltd. The security for
    costs being sought was for the main action, the appeal in the main and for the
    cross-appeal in the Divisional Court. The aggregate amount requested was
    $485,316.23. At para. 14 of his decision, Sharpe J.A. summarized his reasons as
    follows:

In view of the delay in bringing this motion, the fact than
    neither entitlement no quantum of the trial costs has been determined, the
    construction lien judgment in Ravendas favour, and the excessive amount
    claimed for the costs of the appeal, I am not persuaded that the justice of
    this case favours an order for security of the costs.

[2]

1372708 Ontario Inc. asks this court to review Sharpe J.A.s order and
    set it aside or vary it pursuant to s. 7(5) of
Courts of Justice Act
,
R.S.O. 1990, c.43
as amended.

[3]

For a panel of this court, reviewing the decision of a chambers judge
    considerable deference is owed, see
R. v. Gatfield
, 2016 ONCA 23.

[4]

A judge of this court has discretion to award security for costs of an
    appeal, as well as the costs of the underlying motion for trial. Security for
    costs may be ordered in 3 categories of cases, as set out in Rule 61.06(1). The
    overarching principle to be applied to all the circumstances is the justness of
    the order sought, see
Pickard v. London Police Services Board
, 2010
    ONCA 643 (Watt J.A., in chambers), at para. 17.

[5]

Justice Sharpe appreciated and applied the correct law and reached his
    conclusions on facts that are not disputed by 1372708 Ontario Inc. Even if
    Sharpe J.A. had found that all the requirements had been met to satisfy an
    order of security for costs, he was still entitled to refuse it if he found the
    justice of the case required this: see,
Galustian v. SkyLink Group of
    Companies Inc.
, 2010 ONCA 645 (Watt J.A., in chambers), at para. 26. His
    decision that the justice of the case required a refusal of the order and his
    reasons for it, were reasonable in all the circumstances.

[6]

Justice Sharpes decision is accorded the requisite deference and the
    review request is denied. Costs to the responding party in the amount of $7,000
    inclusive of disbursements and HST.

H.S. LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.