2000-beyond Notable Cases

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R. v. Chen et al.: Vigilante Grocer

R. v. Grant: “A Gun is Admitted into Evidence”

R. v. Michael and R. v. Javier: Victim Surcharge – Judges Respectfully Disagree

R. v. Chen et al.: Vigilante Grocer[1]

“From my perspective, relative to the serious criminal cases that stream through this courthouse, this one is a relatively mundane matter.” Justice Ramez Khawly[2]

On May 23, 2009, Wang “David” Chen, owner of the Lucky Moose Food Mart, in Toronto’s Chinatown community was reviewing security video footage and saw a man loading his bike with plants from the store and leaving without paying. An hour later, the man returned to the Lucky Moose. Chen chased him and, assisted by two employees, tied the man up and placed him in the back of a van. The police charged all three of the Lucky Moose staff with assault and forcible confinement. The Crown proceeded by way of summary conviction.  This meant the trial was held in the Ontario Court of Justice.

Online footage of the chase

Online footage of the chase

The case against David Chen became a media sensation. It also led to changes in the Criminal Code concerning a “citizen’s arrest.” These responses are not typical for a case referred to by trial judge Ramez Khawly as “a relatively mundane matter.”

What was it about this case that generated so much media attention and captured the public imagination?

In his reasons for judgment, Justice Khawly observed that Chen’s public persona resembled old-time movie star, Jimmy Stewart, while the alleged victim, Anthony Bennett, had a bad boy image like Jimmy Cagney in the movie, “The Public Enemy.”[3] The film metaphors continued when Khawly likened the facts of the case to a screenplay which, in the public’s mind, went something like this:

“A hard working, relatively newly arrived immigrant to our shores toils relentlessly to eke out a living for his family only to find himself preyed upon by one of the undesirables of our community. The big, cumbersome, ham fisted, sometime mean machine of the state swoops down to protectively cradle into its bosom this most despicable of thieves while lashing out in fury against this poor man whose only sin is attempting to protect his hard earned labour.”[4]

The pervasiveness of this narrative was evident when “[o]ne of the most read Toronto newspapers – in the midst of the trial – monopolized its whole front page with the words: DROP THE CHARGES.”[5]

 The Charges

The police had received intense public criticism for the arrest, treatment and charges against the three men. Justice Khawly found this criticism to be undeserved. After being dispatched to deal with a “potentially dangerous situation with a likely hostage in the back of a van,” officers did “indeed find someone in the back of the van tied up and in apparent distress.”[6]

Justice Ramez Khawly

Justice Ramez Khawly

The judge was blunt about the racial element at play:

“Let us not beat around the bush. This is not the forum for political correctness. Mr. Bennett is black and the other three are Asians. In an urban multicultural environment such as ours one must live under a rock to assume that we all live in perfect harmony or that there are no elements of any ethnic groups, Caucasian or otherwise not dealing in drugs and violence. Toronto the Good like any other large city has an underbelly that does not lend itself to a tourism marketing jingle.”[7]

Justice Khawly also did not agree with public criticism of the Crown Attorney for failing to withdraw the charges, especially in light of the evidence and the potential argument about the use of excessive force.[8]

The Evidence

Although Chen became the subject of much public admiration and sympathy, Justice Khawly was not impressed with the testimony he gave in the courtroom at Toronto’s Old City Hall. Khawly found Chen’s testimony to be evasive and contradictory. That was better than the testimony of one of the co-accused, which was found to be an “outright fictionalized account.”[9]

Nor did Khawly find the testimony of the alleged victim, Anthony Bennett, to be credible. For example, some of Bennett’s original statements to the police were clearly discredited by Chen’s security video. One of Bennett’s statements, however, did resonate with the judge:

“Yeah I stole from them but they didn’t have to frigging tie me up and throw me into a van.”[10]

Justice Khawly also expressed a concern about the conduct of police witnesses in the courtroom.  He observed that “most seemed worried about being tagged for ‘ethnic profiling’ or insensitivity and as a result, in my view, pulled their punches.” [11]

Suggestions were made that shopkeepers such as Chen had lost faith in the police due to slow response times for shoplifting incidents and were therefore tempted to take the law into their own hands. The Crown prosecutor had intended to present evidence to counter the allegation of slow police response times but he ultimately declined to do so.[12]

Language Interpretation and Delay

Khawly’s decision noted that the trial “nearly aborted when a well-regarded court interpreter’s qualifications were disputed by the defence,” even though defence counsel had willingly used the interpreter on a prior occasion, with full knowledge of the person’s qualifications. Khawly took defence counsel to task for his misrepresentation to the Court which resulted in the loss of “two valuable days of court time.”[13]

 The Issue: Use of Excessive Force

Section 494 of the Criminal Code provided that “Anyone may arrest without warrant…a person whom he finds committing an indictable offence.”  An hour had passed between the time when Chen had viewed the security video and Bennett’s return to the store. In light of the time delay, could it be said that Chen had found Bennett committing the offence? Justice Khawly said “yes,” because Bennett had clearly returned to resume his illegal activity. “This was a continuing theft, pure and simple.”[14]

This finding meant that the three men had made an arrest sanctioned by section 494. The main question became: Did they use excessive force? The prosecution contended that it was excessive to hit the victim, bind him by the ankles and wrists, throw him into the back of a van, and drive off.[15]
Ultimately, the judge had a reasonable doubt about what actually transpired, due to the unreliability of evidence given by the three accused persons and by the alleged victim. All three men were acquitted.

The “Lucky Moose Bill”

lucky moose

Source: Yelp website.

David Chen’s case was the impetus for federal legislation that came into force on March 11, 2013. Its official title was the “Citizen’s Arrest and Self-defence Act.”[16] However politicians referred to it as the “Lucky Moose Bill” after Chen’s grocery store.

The legislation amended the Criminal Code to allow for a citizen’s arrest if made “within a reasonable time after the offence is committed” and if the person believes “on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.” Since the terms “reasonable” and “feasible” are not defined, it is not clear how this would affect people in the circumstances of David Chen or Anthony Bennett.[17]

David Chen in media scrum

David Chen in media scrum

Some commentators were quick to criticize the new law.  “New citizen’s-arrest law greeted with applause, criticism,” read the headline in a Globe and Mail article which was largely critical about the ambiguity the changes brought to the law.[18] The National Post questioned the federal government’s impetus for the new law.  “The government has been more than happy to frame it as a sort of retroactive justice for Mr. Chen’s ordeal.   But we have no idea if the courts would consider the one-hour time frame in his case “reasonable” or not.  Conceivably, Mr. Chen could just as easily be charged under the revised law.”[19]

Conclusion

David Chen emerged as a folk hero and media darling, known as the “vigilante grocer.” Although Chen experienced hardship from his arrest and prosecution, community fundraising helped cover his legal costs. His grocery business received a hearty helping of positive publicity. Chen’s case was championed by Olivia Chow, then a federal Member of Parliament.  He was visited by Prime Minister Steven Harper in connection with the new legislation. Not the typical outcomes for a person charged with committing a criminal offence!

Justice Khawly did his best not to be swayed by media attention and public opinion. Conscious of judicial independence, he wrote, “It is a given that my decision – whatever it is – will likely not please anyone and that my comments will infuriate many others but that is why the public has given me the security of tenure. They expect me – despite my ordinariness – to render a judgment devoid of fear or favour.”[20]

  1. R. v. Chen et al., 2010 ONCJ 641 (CanLII)
  2. R. v. Chen et al., 2010 ONCJ 641, par 7, p.2.
  3. R. v. Chen et al., par 60, p.13; par 75, p.17; par 77, p.18.
  4. R. v. Chen et al., par 91, p.20.
  5. R. v. Chen et al., par 27, p.6.
  6. R. v. Chen et al., par 22, p.5.
  7. R. v. Chen et al., par 22, p.5.
  8. R. v. Chen et al., par 28, pp.6-7.
  9. R. v. Chen et al., par 67, p.15.
  10. R. v. Chen et al., par 79, p.18.
  11. R. v. Chen et al., par 18, p.4.
  12. R. v. Chen et al., pars 93-100, p.21.
  13. R. v. Chen et al., par 15, p.3 and pars 33-35, p.8.
  14. R. v. Chen et al., par 4, p.11.
  15. R. v. Chen et al., par 57, p.13.
  16. S.C. 2012, c. 9.
  17. Bill C-26,Chapter 9, 2012.
  18. Appleby, Timothy and Mahoney, Jill, The Globe and Mail
  19. Selley, Chris, National Post, June 29, 2012.
  20. R. v. Chen et al., par 41, p.9.

 

R. v. Grant: “A Gun is Admitted into Evidence”[1]

An inner-city Toronto neighbourhood – the Greenwood and Danforth area, with four high schools in close proximity – had a problem with youth crime, including lunch-hour drug deals, swarmings and robberies.  This neighbourhood was not alone with its experience of youth violence.  In the early 2000s, youth crime was increasing across Canada, with violent crimes making up an ever-larger share.[2]

Communities were concerned.  In the Greenwood and Danforth area, a community policing effort was introduced to respond to those concerns, with officers regularly patrolling the area.

 A “Chat” With the Police

On November 17, 2003, as part of the community policing efforts, two plainclothes officers were patrolling the Greenwood and Danforth area. Around lunchtime, the two officers observed 18-year-old Donnohue Grant walking on the sidewalk. Acting on a hunch that something was amiss – by the way the young black man stared at them and fidgeted with his coat and pants – they called in a uniformed colleague, Officer Gomes, to have a chat with Grant. Gomes stood in front of Grant on the sidewalk and began to speak with him. Shortly afterwards, the plainclothes officers identified themselves and stood behind Gomes, blocking Grant’s way forward.

gun

Gomes asked Grant if he had anything in his possession that he should not have. Grant replied that he had a “small bag of weed” and a firearm. He was then arrested on marijuana and weapon charges. The police seized the marijuana from Grant’s pocket and removed a loaded gun from the pouch he was wearing on his belt. They advised him of his right to counsel and took him to the police station. Grant was charged with five firearms offences.

The Significance of R. v. Grant

R. v. Grant, first heard at the Ontario Court of Justice, was appealed to the Ontario Court of Appeal. In a further appeal to the Supreme Court of Canada, the case made new law and now guides judges across the country in deciding when evidence obtained in breach of Charter rights must be excluded.

While the Grant case has had a significant legal impact, it also tells an important story about the social context surrounding the facts of the case and the community in which it occurred.  All three decisions – from the Ontario Court of Justice to the Supreme Court of Canada – made pointed comments about the community through which Donnohue Grant walked on November 17, 2003.

The Charter Arguments

The Crown elected trial by way of indictment and Grant chose to be tried in the Ontario Court of Justice. The trial was heard by Justice Monte Harris.

At trial, Grant claimed that his Charter rights had been breached.  Specifically, he argued that he had been arbitrarily detained by the police officers in violation of his Section 9 Charter rights and, further, that police had violated his right to retain counsel and to be informed of that right under Section 10(b) of the Charter.  If Grant’s right had been violated, the next question to answer:  Should the evidence (specifically, relating to the loaded gun Grant was carrying) be excluded at the trial under Section 24(2) of the Charter?

Sections from the Charter of Rights and Freedoms Considered in R. v. Grant 

Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.Arrest or detention
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Was He Arbitrarily Detained?

At trial, Justice Harris found that the police had not violated Grant’s rights under the Charter, including the right under Section 9 not to be arbitrarily detained. Therefore, he had no difficulty admitting the gun into evidence and he convicted Grant of five weapons offences.

Harris went on to consider whether the gun should have been excluded if he had found a Charter breach.  “The short answer is ‘No.’”[3] Harris explained:  “The evidence existed irrespective of an assumed Charter violation and its admission would not render the trial unfair.” [4]

The Court of Appeal disagreed with Harris about arbitrary detention – they said it had taken place – but nonetheless approved the admission of evidence and the resulting convictions.

The Supreme Court found that Grant had been arbitrarily detained and, upon detention, he had not been advised of his right to counsel “without delay” as required by Section 10. The detention began when Officer Gomes told Grant to keep his hands in front of him and when the other two officers moved to prevent him from walking forward. The majority decision articulates factors to consider where detention is “psychological,” not involving physical restraint or legal obligations.

Should the Gun Have Been Excluded?

“Debate rages in legal circles over one man’s Supreme Court appeal that could revolutionize the mandate for tossing out evidence.” –Globe and Mail[5]

Section 24(2) of the Charter states that evidence obtained in a way that violates a person’s Charter rights shall be excluded if “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

All three levels of court found that the admission of the gun into evidence would not bring the administration of justice into disrepute.

In reaching its conclusion, the majority of the Supreme Court formulated a new three-part test that considers:

(1) the seriousness of state conduct in violating the Charter,

(2) the impact of the conduct on the accused person, and

(3) society’s interest in the adjudication of the case on its merits.

Under the third prong of the test, the reliability of the evidence is an important factor:

[E]xclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.” [6]

The majority found the gun to be “highly reliable evidence” that was “essential to a determination on the merits”.[7] Further, the majority found that the police conduct was not “egregious.”  While the impact of the Charter breach was significant, the Supreme Court ruled it was not “at the most serious end of the scale.”  Finally, they concluded the value of the evidence – the loaded gun – to be “considerable.” Although it was a “close case” when considering – and balancing – all the circumstances, they ruled the gun to be admissible.[8]

The End Result

The Supreme Court upheld Grant’s convictions on four of the five counts of firearms offences.  He was acquitted of the “weapons trafficking” charge because his plan to transport the gun to another location did not meet the legal definition of trafficking.

Impact on Judging Criminal Trials

Judges of the Ontario Court of Justice are often called upon to hear Charter arguments in criminal cases and to rule on whether evidence obtained through a Charter violation should be excluded. The Grant case has been the subject of judicial education and now serves as an important contribution to the law concerning the Charter. 

Crown counsel Jennifer Woollcombe has said that, in relation to s.24(2), “there can be little dispute that the Supreme Court of Canada has intentionally provided trial courts with an increased degree of flexibility in its new test” set out in Grant.  At the same time, she notes that the guidelines “will significantly narrow the scope of judicial discretion and should assist judges in identifying each of the relevant factors to consider in any particular case.”[9]

The Context of Youth Violence

review

“It takes a certain desperation for a young person to walk our streets with a gun. The sense of nothing to lose and no way out that roils within such youth creates an ever-present danger. That danger arises from the impulsiveness of youth and the lack of foresight with which they often act. The unfortunate — and often tragic — reality is that it often takes very little provocation or incentive to trigger that latent violence once we have let the immediate risk factors develop. This most often puts other youth in danger’s way, but can do the same for any of us, because it creates a reality in which violence is unpredictable — unpredictable in location, unpredictable in cause and unpredictable in consequences.

The Review of the Roots of Youth Violence.”[10]

As the Grant case worked its way through three courts, many significant events involving youth violence occurred in Ontario.  Gun violence, in particular, was an increasing concern.  A high profile event occurred in 2007, for example, when 15-year-old Jordan Manners was shot to death at a Toronto high school during school hours.

The Ontario government commissioned a review to identify the underlying issues creating this situation.  In The Review of the Roots of Youth Violence, authors Roy McMurtry and Alvin Curling examined a variety of “roots,” including poverty, racism, community design, educational and family issues, health, and issues in the justice system.

Research for this report showed that “seven per cent of Toronto high school students have been threatened or attacked by someone with a firearm.”[11]The report also noted that trends in violent crime among younger people include “the increasing frequency with which guns and knives are being used in disputes that might previously have been settled with fists.”[12]

Contextual Issues Acknowledged in R. v. Grant

“Consider what might have happened had the police not intervened here? Someone, perhaps another student in one of the nearby schools, could have been shot and perhaps killed. The public would be outraged.”—Brantford Expositor 

(Dean, David, “The good of the people is the chief law,” Brantford Expositor, August 12, 2009)

Interestingly, each of the three decisions acknowledges the concerns communities – and individuals in those communities – were facing.  Each level of court looked at those concerns through slightly different lenses – demonstrating the balancing act the courts must perform in arriving at their determinations.

At the Ontario Court of Justice, Justice Monte Harris wrote:  Grant “was checked out, to use a term, probably amongst other persons in the area to satisfy a community safety issue, to perhaps get word around that the police are checking out the area and as a bottom line to assist as best they could in crime prevention aimed at the vulnerable student who could be bullied and swarmed without defending himself or herself.”[13]

At the Court of Appeal level, Justice John Laskin wrote:  “Although the right to be free from arbitrary detention touches an individual’s rights of autonomy and freedom, increasing levels of gun violence in our communities threaten everyone’s personal freedom.  In this case, where the police did not grossly overstep the bounds of legitimate questioning, acted in good faith, used no force, and were patrolling one of Toronto’s high-crime areas, I think the repute of the justice system would suffer if the evidence were excluded.”[14]

In the Supreme Court, Justice Ian Binnie wrote:  “A growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified ‘low visibility’ police interventions in their lives…The appellant, Mr. Grant, is black.  Courts cannot presume to be colour-blind in these situations.”[15]

2003 – Donnohue Grant is charged with five weapons offences.2004 – Grant is found guilty of all five offences in the Ontario Court of Justice.

2006 – Appeal to the Court of Appeal is dismissed, but the Court found that the trial judge had erred in deciding that Grant had not been detained.  Grant was “psychologically” detained from the time he was asked about his criminal record and when his path was blocked by the officers.  This detention was arbitrary contrary to Section 9.  However, this breach was not considered flagrant by the Court.

2007 – Jordan Manners, a 15-year-old, was shot and killed at a Toronto high school during school hours, garnering significant media attention and community concern.

2008 – The Review of the Roots of Violence, a study commissioned by the Ontario government and led by former Chief Justice of Ontario Roy McMurtry and former provincial cabinet minister Alvin Curling reported on how to make the province safer in the long term.  The Manners shooting – along with other killings, many of which received less public profile – was a factor leading to this review.

2009 – The Supreme Court releases its decision in R. v. Grant, finding Charter breaches, yet upholding Grant’s conviction on four of the five counts.

Conclusion

Very little is known about Donnohue Grant, the man who cooperated with the police on a Toronto sidewalk one fall day in 2003. We will never know if the loaded gun he was carrying would have led to violence, but we can understand why community policing efforts were directed to high-risk school areas. The case that resulted from his actions has had a significant impact on future criminal cases by creating guidelines for interpreting Charter provisions about detention and the exclusion of evidence. What began as a “chat” between the police and an 18-year-old man turned into a case that changed the law of the land.

  1. [2004] O.J. No. 6254, 2006 CanLII 16347 (ON CA), 2009 SCC 32.
  2. Statistics Canada, “Youth Crime in Canada, 2006,” Juristat, Volume 28, no. 3
  3. R. v. Grant, [2004] O.J. No. 6254, para 42.
  4. R. v. Grant, [2004] O.J. No. 6254, para 42.
  5. Makin, Kirk, “A Chance Encounter That Might Rewrite the Rules,” The Globe and Mail, April 21, 2008.
  6. R. v. Grant, 2009 SCC 32 at para 81.
  7. R. v. Grant, 2009 SCC 32 at para 139.
  8. R. v. Grant, 2009 SCC 32 at para 140.
  9. Woollcombe, Jennifer, “Grant, Suberu and Harrison: Detention, the Right to Counsel and a New Analysis under Section 24(2): Some Practical Impacts” (2010) 51 Sup Ct L Rev 480.
  10. McMurtry, Roy and Curling, Alvin, The Review of the Roots of Youth Violence, Volume 2 – Executive Summary. (Toronto: Queen’s Printer for Ontario,2008), p.5.
  11. McMurtry, Roy and Curling, Alvin, The Review of the Roots of Youth Violence, Volume 4 – Research Papers, Ontario, p.47.
  12. McMurtry, Roy and Curling, Alvin, The Review of Roots of Youth Violence, Volume 1 – Executive Summary, p.3.
  13. R. v. Grant, [2004] O.J. No. 6254 at para 25.
  14. R. v. Grant, 2006 CanLII 18347 (ON CA)
  15. R. v. Grant, 2009 SCC 32 at para 154.

 

R. v. Michael and R. v. Javier: Victim Surcharge – Judges Respectfully Disagree[1]

Two judges in the same court in the same city made decisions on the same issue. The similarity ended there. The two rulings from the Ontario Court of Justice in Ottawa, released a week apart, dealt with a requirement in the Criminal Code for convicted offenders to pay a “victim surcharge.” Justice David Paciocco found the requirement to be unconstitutional and of no force and effect. Justice Robert Wadden found it to be valid.

What is the victim surcharge?

In criminal cases, when a defendant is found guilty, the judge must decide on the appropriate punishment. Section 737 of the Criminal Code says that, in addition to any other punishment imposed, the offender must pay a victim surcharge. Provincial governments use the revenues from the surcharge to fund programs that support victims of crime.

When a judge imposes a fine against the offender, the surcharge is 30% of the fine. If no fine is imposed, the surcharge is $100 for a summary conviction offence and $200 for an indictable offence.[2]

Until 2013, judges had the discretion to refuse to impose a surcharge in order to avoid “undue hardship” to the convicted offender. The law was then amended to remove this discretion. As a result, the surcharge became mandatory in all cases.

R. v. Michael

Shaun Michael was a twenty-six year old Aboriginal man who lived on the street. On three occasions, after becoming “grossly intoxicated” due to alcohol and drug addiction, Michael committed minor assaults, damage to

Justice David M. Paciocco, Ottawa. (Courtesy: Office of the Chief Justice, Ontario Court of Justice.)

Justice David M. Paciocco, Ottawa. (Courtesy: Office of the Chief Justice, Ontario Court of Justice.)

property, and breaches of court orders. His case was heard by Justice Paciocco who convicted him of nine offences. Because no fine was imposed, the surcharge, at a rate of $100 per offence, would have amounted to $900.

The defence counsel argued that imposing the surcharge on his client would be unconstitutional. After conducting a detailed legal analysis, Justice Paciocco found that the mandatory surcharge amounted to “cruel and unusual punishment” in violation of section 12 of the Charter of Rights and Freedoms.

Mr. Michael is an addicted, virtually homeless individual living on a social assistance street allowance that puts him deep below the poverty line…For Mr. Michael, a $900 surcharge would be so crushing as to be grossly disproportionate…[3]

It would have been possible in this case (but not all cases) to order nominal fines that would result in a nominal surcharge. In fact, that is an approach has been used by judges in other cases. In this case, however, Justice Paciocco wrote, “In my view the punitive component of the sentences required in this case is a jail sentence…In this case a fine is not an alternative, because Mr. Michael cannot pay a fine and it would a legal error for me to impose one.”[4]

 “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
Section 12, Charter of Rights and Freedoms.

R. v. Javier

Joebart Phillip Javier pleaded guilty to one count of possession of crack cocaine. Justice Wadden sentenced him to one day in jail in addition to time served prior to the sentencing decision. The duty counsel representing Javier asked Justice Wadden to waive the imposition of the mandatory victim surcharge. She referred him to the decision of R. v. Michael that Justice Paciocco had released several days before. Although decisions from the same level of court are not binding, she asked Justice Wadden to accept Justice Paciocco’s decision as persuasive authority that the surcharge provision of the Criminal Code was of no force and effect.

Justice  Robert Wadden, Ottawa. (Courtesy: Office of the Chief Justice, Ontario Court of Justice).

Justice Robert Wadden, Ottawa. (Courtesy: Office of the Chief Justice, Ontario Court of Justice.)

Justice Wadden respectfully noted that Justice Paciocco had done a “thorough and detailed review of the law” in R. v. Michael.[5] He disagreed, however, with his fellow judge’s conclusion. Justice Wadden found s.737 of the Criminal Code to be valid legislation that obligated him to impose the victim surcharge.” [6]

In his ruling, Justice Wadden noted that “cruel and unusual punishment,” as described by the Supreme Court of Canada, is “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable.”[7]

Ultimately, he concluded that “there is sufficient flexibility available to a sentencing judge to avoid undue harshness in the application of this section.”[8]

Although the financial stress of paying the victim surcharge may be onerous for some offenders I am not persuaded that it is cruel and unusual punishment that would result in a declaration of the invalidity of the legislation. The effect of such a declaration would be that the victim surcharge could not be imposed on any offender, even those who clearly have the means to pay. (R. v. Javier, par 19)

Postcript:  A Binding Decision

In April 2015, Justice Bruce Glass of the Ontario Superior Court issued his ruling in R. v. Tinker.[9] He found that the mandatory victim surcharge is not “grossly disproportionate” and that section 737 of the Criminal Code is valid. Judges of the Ontario Court of Justice became legally bound to follow that ruling. However the debate is not over. Within the judiciary and the media, strongly held views on both sides of the issue continue to be articulated. And some judges continue to order nominal fines when they feel that a surcharge of $100 or $200 per offence would be disproportionate.

In a ruling issued shortly after the Tinker decision, Justice Paciocco graciously acknowledged the binding nature of Justice Glass’ decision:

I am therefore of the view that unless and until a summary conviction appeal court or the Ontario Court of Appeal rules to the contrary, after considering all of the issues that require consideration, the Tinker decision does settle the question, and I am obliged to follow it. I am therefore rejecting the constitutional challenge that has been brought by Mr. Eckstein, and I will be imposing the victim surcharge.[10]

Conclusion

The Ontario Court of Justice decisions in R. v. Michael and R. v. Javier show how judges of the same court can respectfully disagree. As observed by Peter Griffiths, a former Associate Chief Justice of the Court, “I am struck, looking at the two decisions, at the reasoned, respectful and responsible way they articulate and guide the public debate on a sensitive issue.”[11]

  1. R. v. Michael, 2014 ONCJ 360; R. v. Javier, 2014 ONCJ 361.
  2. Summary convictions offences are considered less serious than indictable offences because they are typically punishable by lesser sentences and smaller fines.
  3. R. v. Michael, par.58
  4. R. v. Michael, par. 49.
  5. R. v. Javier, par. 10.
  6. R. v. Javier, pars 4 and 5.
  7. R. v. Javier, par 7.
  8. R. v. Javier, par 10.
  9. R. v. Tinker (April 9), 2015 ONSC 2284, [2015] O.J. No. 1758, 2015 CarswellOnt 4936 (Ont. S.C.), B. Glass J.
  10. R. v. Eckstein (April 13), 2015 ONCJ 222, [2015] O.J. No. 1869, 2015 CarswellOnt 5865 (Ont. C.J.), D. Paciocco J.
  11. Interview of P. Griffiths for the OCJ History Project, 2015.