Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 18, 2019 7 www.lawtimesnews.com COMMENT BY SAYEH HASSAN LATE last year, the Supreme Court of Canada quashed the mandatory victim surcharge im- posed on accused convicted of criminal offences. In R. v. Bou- dreault, the SCC found the man- datory victim surcharge to be cruel and unusual punishment violating s. 12 of the Charter. The Supreme Court's deci- sion was a welcome develop- ment for criminal defence law- yers who for years have had no recourse or a way to protect their clients from being forced to pay victim surcharges they can't af- ford, putting the clients at a ser- ious disadvantage when it comes to paying their debt to society and moving forward with their lives. With this decision, the SCC has taken a new and positive step toward fairness in our crim- inal justice system and I applaud them for it. I am hopeful that moving forward our govern- ment will take into account the lived reality of accused and craft policies accordingly. Section 737 of the Crimin- al Code mandated that anyone convicted of a criminal offence or even discharged of an offence had to pay a victim surcharge re- gardless of their financial ability to pay. The surcharge amount was either 30 per cent of any fine imposed or, in the absence of a fine, $100 for each summary conviction offence and $200 for each indictable offence. The sur- charge payment was mandatory and left no discretion for judges, even in cases where the accused was clearly not in a position to pay the victim surcharge. For years, s. 737 of the Crim- inal Code had disproportionate- ly and negatively impacted the most vulnerable accused people within our criminal justice sys- tem. It affected people who were homeless with no fixed address and no income or those suffering from addiction or mental health problems, as well as people liv- ing below the poverty line. Many judges in Ontario and other provinces had rebelled against the mandatory victim surcharge before it was struck down, finding creative ways to get around ordering it for ac- cused who clearly were not able to pay. One clever way I had ob- served judges circumvent the victim surcharge was by or- dering a nominal $1 fine even when a fine is not required, in order to reduce the victim sur- charge to 30 cents. Another tactic judges used to get around the surcharge for accused people already in custody was to refuse to give the accused person time to pay the surcharge, and then deeming the accused person to be in breach and sentencing them to one day in jail. The one day in jail sentence was usually satisfied with the court appear- ance, for the sentencing hear- ing, if the accused was already in custody. That meant the ac- cused essentially received time served for non-payment of the surcharge and was able to move forward with their life. In concluding that the vic- tim surcharge amounts to "cruel and unusual punishment," the SCC took into consideration a number of different factors that included having to live with the constant threat of going to jail for non-payment and being pun- ished indefinitely in cases where there was no realistic prospect of ever making the payments. Proponents of victim surchar- ges argue that those who couldn't pay the victim surcharge had the option to ask for an extension of time and the opportunity to ap- pear before a Committal Com- mittee and explain their person- al circumstances before being sentenced to a prison term for non-payment. While these options may be viable for accused who are liter- ate, have a fixed address, access to a computer to type the required application for extension and those who can afford representa- tion, bringing an extension appli- cation is not a realistic option for accused who are homeless, often illiterate or suffering from ad- diction or mental health issues. These individuals were not in a position to prepare an applica- tion let alone serve and file it in court, in order to ask for an ex- tension. This inevitably meant they missed their deadline to pay, putting them in violation of the order and requiring them to attend committal committees to prove they were not in a position to pay. A serious problem with hav- ing to appear before the com- mittal committee was the fact that for those who are homeless or have no fixed address, they wouldn't receive an appearance notice and often wouldn't know they were required to appear until they were picked up by the police for an unrelated reason. In these cases, there was a high likelihood that the accused per- son would be kept in custody until their hearing date before the committal committee, tak- ing us back to the 18 th century when people were kept in debt- ors' prison. Victim groups had raised concerns about losing a guar- anteed stream of provincial in- come that assists with various victim assistance and support programs, as well as the possible lack of accountability by the ac- cused toward victims. In terms of available stream of income, while the provincial victim surcharge may no longer be available, the federal govern- ment does provide victim funds for various types of victim ser- vices including child advocacy, funding and grants for numer- ous victim-related projects that assist victims in participating in the criminal justice system, as well as funds for survivors of crimes who as a result have suf- fered from disabilities, just to name a few. With respect to accountability of the accused to the victims, this is already a factor that is taken into account by judges during sentencing hearings, irrespective of the victim surcharge. Any sen- tence that may include a prison term, fine, restitution, commun- ity service, anger management and/or probation will take into account the personal circum- stances of the accused as well as accountability toward both the victim and society. Scrapping the victim surcharge does not mean doing away with accused accountability. I am hopeful that moving forward our govern- ment will take into account the lived reality of accused and craft policies accordingly. LT Sayeh Hassan is a criminal defence lawyer with Walter Fox & Associates in Toronto. BY MAT THEW GOURL AY B eing a creep is not, in itself, a criminal offence in Canada. Some would like it to be, especially these days when the impulse to easy outrage and moral censure appears so irresistible. But plenty of obnoxious conduct doesn't amount to a crime. And that is how it should be. Af- ter all, the criminal law is supposed to be a last resort — a way to deal with conduct that cannot properly be dealt with in any other manner. And it is supposed to be clear in its application. People should be able to know in advance, with a reason- able degree of certainty, what is criminal and what isn't. The ebb and f low of popu- lar distaste doesn't provide that level of guidance. I think the Supreme Court strayed from these principles in its decision last month in R. v. Jarvis, 2019 10, its decision on voyeurism. I should note that I was in- volved in the case but only peripherally — as counsel for the Criminal Lawyers' Association, an intervener. So, I may be biased, but (I'd like to think) not hope- lessly so. The accused, Ryan Jarvis, unques- tionably acted like a creep. A high school teacher, he used a camera disguised as a pen to videotape female students go- ing about their business in the school's hallways and classrooms. Although the students were fully clothed throughout, the surreptitious recordings tended to focus on their breasts. After being found out, and presumably relieved of his teach- ing responsibilities, Jarvis was charged with the offence of voyeurism. Did the conduct fit the crime? A majority in the Ontario Court of Appeal thought not. They reasoned that the lan- guage of s. 162 requires that the impugned observation or recording take place in cir- cumstances where the com- plainant enjoys a "reasonable expectation of privacy." The students' trust had been violat- ed, no doubt, but not their pri- vacy. They were in public, fully clothed. The privacy element was missing. Indeed, the legislative history revealed that this offence was enacted in 2005 in response to technological advances that permitted new intrusions into private spaces. Previously, the offence of "tres- pass by night" had been used to prosecute traditional "peeping Toms" who looked into bedroom and bathroom windows. But that offence failed to catch those who observed by way of remote camera. Par- liament thought that a new offence was needed and acted accordingly. Nothing in the legislative history suggested any awareness on the part of parliamentarians that they were potentially criminalizing the observation or taping of fully clothed people in public. The Supreme Court took a different view. The majority, led by Chief Justice Richard Wagner, held that a person can have a reasonable expectation of privacy for the purpose of the voyeurism offence no matter where located. To this end, the court laid out a non-exhaustive list of nine factors that courts can use to determine whether a complainant had a reasonable expectation of privacy. This kind of judicially de- veloped test is familiar in the case law. Often, such tests are employed to determine wheth- er the police breached an ac- cused's Charter rights. But I think they are a bad idea where the scope of criminal liability is being defined by the courts. When the threat of imprison- ment is at stake, people should be able to determine what's illegal without the bene- fit of deep jurisprudential ref lection. And where there is a grey zone left open by the legislation, it should be resolved in favour of the accused. This is what used to be called the prin- ciple of "strict construction." Regrettably, it appears to have been overtaken by the kind of "purposive" approach used else- where in the law. But in criminal law, pur- posive interpretation can overshoot the mark. Jarvis provides a good example. The majority thought that the law's pur- pose was to protect a complainant's "sex- ual integrity." Yet there are plenty of ways in which observation or photography can violate someone's sexual integrity with- out engaging the voyeurism law, which requires surreptitiousness. Overt leer- ing would not fit the bill on any account. Stretching a criminal law to try to catch all harms associated with its purpose is doomed to incoherence and uncertainty. A few years back, in R. v. D.L.W., 2016 SCC 22, the court took a different and, in my view, better approach to an even more highly charged question: Does non- penetrative sex with an animal amount to bestiality under the Criminal Code? I think most people's gut response would be "yes." And yet the legal history of the provision clearly evinced adherence to the restrictive common law definition, which required penetration. If Parliament want- ed to broaden the scope of criminal liabil- ity, it could do so. Last year, it did — s. 160 of the Code was amended to criminalize all sexual contact with animals. This is how the criminal law is supposed to work. Courts construe offences narrowly; Par- liament has the option to broaden them if warranted. I think the D.L.W. approach ref lects a healthy judicial recognition of the truth that not all distasteful conduct is neces- sarily caught by our Criminal Code. Nor need it be. Courts should adopt an inter- pretative approach that puts the onus on Parliament: If it wants to criminalize a given act, it must clearly say so. LT Matthew Gourlay handles criminal and regu- latory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's avail- able at mgourlay@hhllp.ca. Speaker's Corner Nixing victim surcharges a good move Criminal law supposed to be last resort A Criminal Mind Matthew Gourlay

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