News & Views

Mandatory Victim Surcharges May be Going Extinct in Provincial Offences
March 13, 2019

Mandatory Victim Surcharges May be Going Extinct in Provincial Offences

Written by Ryan Hanna

In the recent case of R. v. Boudreault 2018 SCC 58 (judgment rendered December 14, 2018), the Supreme Court of Canada declared that mandatory victim surcharges imposed on individuals found guilty of an offence under the Criminal Code (Section 737) are unconstitutional for violating sections 12 (protection against cruel and unusual treatment or punishment) and 7 (the right to life, liberty and security of the person) of the Charter of Rights and Freedoms (a 7-2 ruling). The issue was the disproportionate consequences on people ordered to pay the fine, depending on their financial circumstances, and the complete absence of a judge’s ability to exercise discretion in imposing the surcharge.

In his ruling Martin J. concludes:

“Ultimately, for both several of the appellants and the reasonable hypothetical offender, the mandatory victim surcharge is unmoored from its legitimate objectives. Judges are forced to impose a one-size-fits-all punishment which does not take into account the individual’s ability to pay. In this context, the resulting indeterminate punishment results in a grossly disproportionate public shaming of disadvantaged offenders. It is what most Canadians would call an abhorrent and intolerable punishment. Put simply, in our free and democratic society, it is cruel and it is unusual.”

It is important to note that Criminal Code offences are not the same as Provincial Offences Act offences. Provincial Offences are a quasi-criminal area of law that encompasses regulatory offences under various provincial statutes and regulations. One example of this would be traffic fines under Ontario’s Highway Traffic Act. R v. Boudreault dealt only with mandatory victim surcharges under the Criminal Code; however, the Provincial Offences Act also provides for mandatory surcharges in the same manner as the Criminal Code. Therefore, the principles the Supreme Court as applied in Boudreault should apply equally to provincial mandatory surcharges, leaving them vulnerable to being struck down as unconstitutional just like those from the Criminal Code.   

Since the decision only came down in December of 2018, it’s still too early to say how it is going to affect provincial fines in the absence of legislative changes, but it is definitely something to keep in mind if you find yourself facing charges under the Provincial Offences Act. No matter what, it is going to be interesting to see how things shake out over the coming year.

Note 1: Under the POA fines are set out in a chart

https://www.ontario.ca/laws/regulation/000161
capping at a 25% surcharge for fines over $1000 

Note 2: If you wish to read further, the case can be found at:
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17416/index.do

For more information on the matter, please contact Ryan Hanna directly at [email protected] or at 905 763 3770 x 250.

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


About the Author:

While regularly acting on a range of legal matters, Ryan Hanna maintains a business oriented focus to his litigation practice, assisting clients with commercial disputes ranging from shareholder actions and wrongful dismissal claims to secured and unsecured debt enforcement, residential tenancy disputes, commercial leasing matters, and trademark infringement.

What is BILL 66? Amendments to Existing Legislation
February 28, 2019

What is BILL 66? Amendments to Existing Legislation

Written by Vanessa Battista 

On December 6, 2018, the Ontario Government announced Bill 66, Restoring Ontario’s Competitiveness Act, 2018, proposing more than 30 amendments to existing legislation.  

SCHEDULE 10, THE PLANNING ACT AND OFB BY-LAWS

Among the most significant proposals was Schedule 10 of the Bill which would add section 34.1 to the Planning Act. Under this section, municipalities could pass a new type of zoning by-law called “open-for-business planning by-laws” (“OFB By-laws”) to authorize uses of land for “prescribed purposes” which have yet to be specified. The Ministry of Economic Development described the OFB By-laws as intending to “remove planning barriers to expedite major business investments and speed up approvals so they would be completed within one year.”

OFB By-laws would streamline provincial zoning approvals for qualifying developments. Further, passing an OFB By-law would require no advanced notice or public meeting prior to enactment and would not be subject to an appeal process before the Local Planning Appeal Tribunal.

EXEMPTIONS

Of particular note, OFB By-laws would exempt developments from previously required land-use planning and environmental protections. These include exemptions from:

i. The Provincial Policy Statement, 2014;
ii. The Growth Plan for the Greater Golden Horseshoe, 2017;
iii. Section 39 of the Clean Water Act; 
iv. The Lake Simcoe Protection Plan, 2009;
v. Section 20 of the Great Lakes Protection Plan, 2015;
vi. The Greenbelt Plan, 2017;
vii. The Oak Ridges Moraine Conservation Plan, 2017; 
viii. Height and density bonusing by-laws;
ix. Section 41 of the Planning Act, and its site plan control process (municipalities would still, however, have the ability to impose site plan related conditions); and, more.

CURRENT STATUS

Bill 66 has faced criticisms from several groups, including environmental protections groups. Nonetheless, the Bill passed its first reading and underwent its second reading last week; it remains under consideration.

Landowners and developers should pay attention to how Bill 66 progresses, due to the potential implications on the development process in Ontario.

For more information on the matter, please contact Vanessa Battista directly at [email protected] or at 905 763 3770 x 217.

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


About the Author:

Vanessa Battista is the 2018-2019 articling student at FIJ Law.

Vanessa was our Summer Student in 2017 and she is excited to return to complete her Articling with the firm and gain experience in each area of expertise the firm has to offer.