Garrett Eckstein 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 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 s. 12 of Charter rights - Canadian Charter of Rights and Freedoms, s. 12 - Criminal Code, R.S.C. 1985, c. C 46, s. 737.


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Garrett Eckstein pleaded guilty to the indictable offences of robbery, conspiracy to commit robbery and breach of probation. The sentencing judge imposed a sentence of 8 months’ incarceration less pre-trial custody. Mr. Eckstein also faced a mandatory victim surcharge under s. 737 of the Criminal Code, of $600. The sentencing judge gave Mr. Eckstein 12 months to pay the surcharge.

Mr. Eckstein brought an application challenging the constitutional validity of s. 737, arguing that the imposition of a mandatory victim surcharge violated s. 12 of the Charter. Mr. Eckstein’s application was dismissed by a judge of the Ontario Court of Justice, who found that s. 737 did not violate s. 12 of the Charter. Mr. Eckstein’s appeal was dismissed by the Ontario Court of Appeal.