Edward Tinker, Kelly Judge, Michael Bondoc and Wesley Mead v. Her Majesty the Queen
(Ontario) (Criminal) (By Leave)
Constitutional law - Criminal law, Sentencing, Cruel and unusual treatment or punishment (s. 12), Canadian charter (Criminal) - Charter of Rights and Freedoms - Constitutional law - Criminal law - Sentencing - Victim surcharge - Cruel and unusual treatment or punishment - Accused ordered to pay surcharge under s. 737 of Criminal Code - Constitutionality of s. 737 Cr. C. - Whether victim surcharge contained in s. 737 of the Criminal Code constitutes cruel and unusual punishment in violation of s. 12 of the Charter in a manner not saved by s. 1 - Whether victim surcharge constitutes cruel and unusual punishment in violation of s. 7 of the Charter in a manner not saved by s. 1 - Whether any violation can be remedied under s. 52 of the Constitution Act, 1982 by reading-in judicial discretion to waive the surcharge where imposing it would violate the offender’s ss. 7 or 12 of Charter rights - Canadian Charter of Rights and Freedoms, ss. 7 and 12 - Criminal Code, R.S.C. 1985, c. C 46, s. 737.
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The appellants were charged separately for various offences pursuant to the Criminal Code. Each appellant entered guilty pleas on different days. Taking into account the financial circumstances of the appellants, the sentencing judge did not find it to be part of a fit sentence to impose a victim surcharge as part of any of their sentences. He held that the requirement in s. 737(1) and s. 737(2)(b) of the Criminal Code for a surcharge, where no fine is imposed on the offender, infringes s. 7 of the Charter and cannot be saved by s. 1. The sentencing judge declared that the requirement for a mandatory surcharge in s. 737(1) and s. 737(2)(b) was of no force and effect.
A Superior Court judge overturned the sentencing judge’s decision, ruling that the provision did not infringe the Charter, and applied the surcharge to each appellant in accordance with s. 737 of the Criminal Code. The Ontario Court of Appeal dismissed the appellants’ appeals.
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