Law Times

Law Times • June 1, 2015 Page 11 www.lawtimesnews.com Constitutional litigation Surcharge sparks debate over weight of ontario Court decision By Shannon Kari Law Times T he ongoing litigation over whether the man- datory victim surcharge complies with the Char- ter of Rights and Freedoms has also sparked a debate about the impact of any finding by a pro- vincial court judge that a law is unconstitutional. Can provincial court judges simply adopt the conclusions of a colleague who has found a law to be invalid after a notice of consti- tutional question has been filed and argued or must they revisit Charter arguments each time? Ontario Court Justice David Paciocco addressed the issue in detailed reasons last August in R. v. Sharkey and concluded that such a ruling can be classified as a "persuasive precedent" that other provincial court judges can adopt without full Charter arguments. The Crown appealed and Ontario Superior Court Justice Julianne Parfett overruled Paciocco in a decision this spring. She deter- mined there must always be an opportunity for "meaningful sub- missions," although oral notice is sufficient if the court has already found a law to be invalid. The rulings both dealt with the mandatory victim sur- charge. Since then, an appeal has been filed of a recent Superior Court decision upholding the surcharge that's binding on On- tario Court judges. As a result, the scope of a provincial court judge's remedial powers is, for now, likely to remain unclear. John Hale, the defence lawyer in Sharkey, says until there was a Superior Court decision, "it was not a good use of resources" to have to repeatedly litigate some- thing that came up daily in the Ontario Court. Paciocco issued his decision in Sharkey just days after he ruled in R. v. Michael that the mandatory victim surcharge violated s. 12 of the Charter. The Crown argued Paciocco couldn't rely on his own deci- sion because provincial courts are statutory courts without au- thority to impose a declaration unlike a Superior Court that has inherent jurisdiction. "I begin by accepting that pro- vincial court judges' decisions are not binding on other courts. They are however precedents arrived at through considered deliberation," wrote Paciocco. "They are therefore of per- suasive value with respect to the decisions made by other courts or by the same court in other cases," he added. Paciocco cited the Supreme Court decision in R. v. Ferguson as support for his position. "Ferguson held that the law cannot tolerate case-by-case exemption. A law that is unconstitutional is uncon- stitutional in all cases," he wrote. If the Crown is correct in its view, it results in an unfair advan- tage, according to Paciocco. "It means that the Crown is in a posi- tion to isolate a Charter challenge that it loses by not appealing that decision," he wrote. "It should not be necessary in order to trigger that consid- eration for formal and pointless Charter challenges to be brought in every case. Those Charter challenges would be particularly pointless in a case where I am presiding. I have already made a determination, after tremen- dous ref lection, that the victim surcharge is unconstitutional as cruel and unusual treatment and punishment," he added. Michael Dineen, a Toronto criminal appeals lawyer, says the victim surcharge is "an unusual set of circumstances" because it comes up so often in provin- cial court. As well, there was no Superior Court ruling on its va- lidity for more than 18 months after the amendment making it mandatory became law. "A judge sitting in plea court might have to rule on the issue 15 times in one day. Imagine Jus- tice Paciocco having to invite the Crown to reargue this issue every 20 minutes after the detailed rul- ing he already gave," says Dineen, a partner at Dawe Dineen. The decision by Justice Par- fett can be "read narrowly" in that if there's already a detailed decision on a constitutional is- sue, a provincial court judge only has to give "a token oppor- tunity" for the opposing party to make any new submissions on the topic, says Dineen. However, as a general prin- ciple, Dineen says he's not sure the Supreme Court in its decision in Ferguson expanded the scope of the provincial court's remedial powers. "Even though the ana- lytical exercise a provincial court judge goes through is not case- specific and the court will reach the same result no matter what the individual accused or facts are before them, the limits on the provincial court's remedial pow- ers still exist," says Dineen. As a result, it may create situa- tions where the courts "effectively have to rule on the same point over and over again," he says, add- ing that in subsequent cases, judg- es can restrict the submissions to the token opportunity. Parfett was trying to bal- ance principles of respect among judges of concurrent jurisdiction and procedural fairness, says To- ronto defence lawyer Enzo Ron- dinelli. "In practice, I think Justice Parfett's approach is workable" if a provincial court judge has found a law to be invalid, he adds. "Notice can be given orally by the defence. If the trial judge has already decided on the issue in the past, the Crown can indi- cate whether on the face of new authority it would like to make submissions to persuade the judge the earlier ruling should not be followed." LT FOCUS Gain invaluable insight on the private security professional's role and responsibilities in managing a wide variety of emergency situations. Written by two highly trained emergency management veterans of fire and police services, Security Professionals: A Guide for Emergency Situations fills in the gaps that cannot be met with basic security guard training. 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