IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]            Mr. Barinecutt pled guilty and was sentenced for two breaches of an undertaking which occurred on February 10 and 13, 2014. The undertaking was imposed following an allegation of assault. The breaches concerned violations of the same area restriction, a two block radius of the First United Church, which was the location of the alleged assault. The First United Church operates a low-barrier shelter for the homeless in the downtown east side of Vancouver.

[2]           The victim surcharge attaching to each offence is $100.00, payable within two months of imposition.

[3]           Mr. Barinecutt seeks a declaration that the victim surcharge, s. 737 of the Criminal Code  R.S.C. 1985, C-46, as amended infringes his rights as guaranteed by s.7 and s.12 of the Canadian Charter of Rights and Freedoms.  He asserts the victim surcharge amounts to a potential deprivation of his liberty and right to security of the person contrary to the principles of fundamental justice, and, is grossly disproportionate to the offence thereby amounting to cruel and unusual punishment.

[4]           The Crown submits that Mr. Barinecutt’s s. 7 and s. 12 Charter rights are only triggered should Crown seek imprisonment for failure to pay the surcharge, so the Application is premature or unnecessary. In any event, the Crown submits that the financial burden imposed by the surcharge does not amount to cruel and unusual punishment.

[5]           Counsel agreed to argue the issues in two stages:  firstly, whether the victim surcharge operates to infringe Mr. Barinecutt’s Charter rights under ss. 7 and 12, and second, if I find a Charter infringement, then, whether any infringement is justified under s. 1 of the Charter.

[6]           I have reviewed the Exhibits filed on this Application: a Pre-Sentence report prepared March 27, 2014, articles, reports, excerpts from the Parliamentary Record, and Affidavits of three employees of the Ministry of Justice. I have considered a number of authorities, all of which are cited in the Appendix to these reasons.

[7]           A victim fine surcharge was first introduced in 1989 and applied as a percentage of fines and (by regulation) a minimum flat fee in non-fine cases.  If an offender established undue hardship the surcharge could be waived (An Act to Amend the Criminal Code (Victims of Crime), R.S.C. 1985 c. 23 (4^th Supp.) s. 6; Victim Fine Surcharge Regulations, SOR/89-366 s. 2).

[8]           In 1999 the victim fine surcharge provisions were amended so the surcharge applied to all convictions no matter the type of sentence imposed. If a fine were imposed the surcharge was still 15 percent, but if no fine was imposed the victim fine surcharge was $50 for summary conviction offences and $100 for offences proceeded with by way of indictment (and a judge could order a higher amount).  Still, the victim fine surcharge could be waived if an offender established undue hardship.

[9]           The amendments which came into effect on October 24, 2013, changed the name of the provision in s. 737 of the Criminal Code from “victim fine surcharge” to “victim surcharge”, increased the amount payable to $100 for summary conviction offences and $200 for indictable offences, or 30 percent of any fine imposed. There is no longer an exemption for undue hardship. The victim surcharge applies to all offences and to all offenders.  It also applies when discharges are granted. A fine option program, where available, was extended to apply to the victim surcharge. Mr. Barinecutt cannot extinguish a victim surcharge levy by community service in a fine option program because such a program does not exist in British Columbia.

[10]        Section 737 of the Criminal Code now reads:

[11]        The victim surcharge must be paid within two months of the date of sentencing unless an offender is sentenced to continuous custody.  In that circumstance, the surcharge must be paid by the earlier of two months after the date on which an offender’s warrant of committal expires or two years after the date of sentencing (Criminal Code s. 737(4); Criminal Code Victim Surcharge Regulation, B.C. Reg. 394/99, as amended by B.C. Reg. 87/2000). An offender can apply for an extension of time to pay the victim surcharge (Criminal Code s. 737 (8) (d)).

[12]        Payment of the victim surcharge is enforceable in the same manner as a fine, except that it cannot be lodged as a civil judgment. An offender’s driver’s licence, and other licences may be suspended. A warrant of committal may be issued if the time to pay the fine has expired, other available mechanisms are not appropriate in the circumstances, and the offender has no reasonable excuse for refusing to pay. (Criminal Code s. 737(9))

[13]        The Affidavit material filed by the Crown sets out the steps taken by the Province to collect victim surcharges.  If a surcharge is not paid within 30 days of the due date, the Province’s Revenue Services begins collection.  A series of letters are mailed to the offender if the surcharge remains unpaid. Once the final letter, a legal warning letter, is sent the debt is then registered with Canada Revenue Agency, which causes the debt to be paid out of any tax refund owed to the offender. The final step would be to pursue legal action to collect the debt, including registering it against an interest in land, or issuing a demand against wages or bank accounts. The Insurance Corporation of British Columbia may suspend or refuse to renew a driver’s licence where the offender’s victim surcharge is attached to a motor vehicle related Criminal Code offence (and other specified motor vehicle related offences). (Motor Vehicle Act  R.S.B.C. 1996 c. 318 s. 26.)

[14]        Section 7 of the Charter reads:

[15]        The Crown argues that Mr. Barinecutt’s s. 7 Application is premature insofar as he is seeking relief for an anticipatory breach, as he has not demonstrated an interference with his liberty, just a theoretical possibility of a future interference, or a potential suspension or non-renewal of his driver’s license which is not engaged by s. 7.

[16]        Dealing first with a potential suspension or non-renewal of Mr. Barinecutt’s driver’s license, s. 26 of the Motor Vehicle Act itemizes circumstances where an indebtedness many cause the ICBC to refuse to issue a driver’s license. The only Criminal Code offences which are included in this section are motor vehicle related Criminal Code offences.  Therefore, an individual cannot be refused the issuance or renewal of his driver’s license because of an unpaid victim surcharge for breaching an undertaking.  Also, the right or privilege to drive a motor vehicle on a public highway is not a liberty protected by s. 7: Buhlers v. British Columbia (Superintendent of Motor Vehicles) para 110, SCC leave to appeal refused, nor is the right to other licenses: R. v. Henneberry para 62.

[17]         Mr. Barinecutt further submits that his liberty and security interests are engaged because he could be incarcerated for failing to pay the victim surcharge.

[18]        To establish a s. 7 infringement the link between the action or impugned event and the future harm must be probable and capable of proof: Operation Dismantle v. The Queen, p. 456-458.  In other words, Mr. Barinecutt must prove that there is a sufficiently serious risk that the alleged violation will in fact occur; i.e., a very real likelihood that in the absence of Charter relief his Charter rights will be prejudiced: Phillips v, Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), para 108, 110.

[19]        Crown must apply for a warrant of committal before an offender can be incarcerated for failing to pay a victim surcharge (Criminal Code, s. 734.7 (1)).

[20]        The Affidavit evidence before me discloses that in the last four years the Crown has not sought a warrant of committal in default of payment of a victim surcharge.

[21]        If Crown were to seek a warrant of committal, the warrant could not issue unless the offender refused to pay the fine without a reasonable excuse (Criminal Code, s. 734.7(1)(b)(ii); Boulet v. R.C.M.P.; R. v. Purewal; R. v. Spyglass).  Inability to pay the fine constitutes a reasonable excuse: R. v. Wu.

[22]         Mr. Barinecutt’s incarceration is not probable prior to a committal hearing; that is, until a warrant of committal is sought there is not a sufficiently serious risk or a very real likelihood that this Charter right will be prejudiced. The appropriate time for a s. 7 application alleging infringement of Mr. Barinecutt’s liberty right is at the hearing which may result in his right to liberty being infringed: U.S.A. v. Kwok; R. v. Katchatourov.  Consequently an application on that basis is premature.

[23]        However, the liberty interest protected by s. 7 of the Charter must be interpreted broadly as it protects an individual’s personal autonomy, not just freedom from physical restraint. “Liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices: Blencoe v. British Columbia (Human Rights Commission) para 4.

[24]        The restriction of an individual’s security is made out when the impugned state conduct has a serious and profound effect on a person’s psychological integrity and there is state interference with an individual interest of fundamental importance:  New Brunswick (Minister of Health and Community Services) v. G. (J), para 60, 61. Economic consequences, such as limitations on the recovery of damages, have been found not to infringe an individual’s s. 7 liberty and security interests: Wittman v. Emmott; Whitbread v. Walley, nor will “stress, anxiety and stigma that result from administrative or civil proceedings” (Blencoe v. B.C.(Human Rights Commission) para 83).  The consequences must be greater than ordinary stress and anxiety: New Brunswick v. G(J), para 60.

[25]        Mr. Barinecutt argues that the victim surcharge would leave him in a state of perpetual sentence, subject to the stress and uncertainty of potential prosecution at any time, and effectively unable neither to finish his sentence nor to have his criminal record suspended. A criminal record may interfere with Mr. Barinecutt’s ability to obtain certain types of employment, or to travel outside of Canada.  All of this, he submits, deprives him of his personal autonomy and individual dignity.

[26]        The Pre-Sentence Report establishes that at the time of these offences, Mr. Barinecutt was 32.  He was born in Surrey, B.C. and was placed into the care of the Ministry of Children and Family Development immediately following his birth.  His mother misused drugs and alcohol during her pregnancy. His childhood was unstable as he was placed in numerous foster homes. He was physically abused while growing up and sexually assaulted by a babysitter.

[27]        His criminal record begins at age 19. Shortly thereafter, he moved to Calgary where he lived for three years. He has been without a fixed address since returning to British Columbia. His goal is to secure stable housing.

[28]        Mr Barinecutt is HIV and Hepatitis C positive. He suffered a lower lumbar injury as a result of being shot in 2002.  According to the British Columbia Community Corrections files he has below average cognitive ability and is just above the criteria for being developmentally delayed. He was diagnosed with Attention Deficit Disorder, Fetal Alcohol Effect [sic] and Fetal Alcohol Spectrum Disorder. Reports of ongoing substance misuse are contradictory:  Mr. Barinecutt says he last used illicit substances in January of 2014, that he quit of his own accord at age 30, and that he is on the methadone maintenance program. His primary physician reports that she has not been able to assess Mr. Barinecutt for any mental health diagnosis because of his on-going substance misuse.  Mr. Barinecutt acknowledged to the pre-sentence report writer that most of his criminal history relates to his substance misuse.

[29]        Mr. Barinecutt has approximately sixty previous convictions. The majority are property-related, and he has failed to comply with court orders. Since 2002, Mr. Barinecutt has received custodial time for most of his offences.

[30]        Mr. Barinecutt advised the report writer that he completed grade 10 in 2000 and is motivated to complete his high school graduation requirements. He also told her that he obtained his welding ticket when he was twenty-one after attending Bow Valley College for three years. Among other jobs, he reported working in welding, construction, and as an automobile and motorcycle mechanic. He said he was employed by Ledcor Construction for five years until November 2013, and quit due to ongoing stress, being in and out of custody, and no longer wanting to be affiliated with gang associates. This information was not confirmed by the report writer.

[31]        Mr. Barinecutt’s record for the time he reports being employed by Ledcor Construction reveals that he was in custody for most of 2008, had sentences totalling 96 days in 2009, seven months in 2010, 93 days in 2011 25 days in 2012 and 23 days in 2013.

[32]        Mr. Barinecutt has been receiving persons with disability benefits since November 16, 2013. His file with the Ministry of Housing and Social Development has been sporadically open and closed since January 2001.

[33]        Considering Mr. Barinecutt’s cognitive and developmental challenges, the extent of his high school education, his difficulties with illicit substances, his lack of housing, his failure to complete alcohol and drug interventions in the community and the time he has spent in custody, I find it extremely unlikely that he obtained his welding ticket as he reported, and that he was employed steadily by Ledcor Construction for five years.  I think it more probable that he was trying to present himself in a favourable light to the report writer as he was in custody at the time and no doubt hoping for no further supervision or custodial time.

[34]        In Mr. Barinecutt’s circumstances I find that his right to security of the person is infringed by the mandatory victim surcharge. He is unable to pay it at present.  Given his cognitive limitations, medical diagnosis and personal circumstances, namely, being homeless, he is unlikely to be able to pay it in the foreseeable future.  Even if he could gather the resources to file an application to extend the time to pay the surcharge, that would still leave him in limbo with the debt remaining and unable to start the clock running on the waiting time required before he could apply for a record suspension. While economic interests are not protected by s. 7, the impact of an ongoing unpaid victim surcharge on Mr. Barinecutt is more than merely economic.

[35]        This situation is not unlike the interference with a person’s security which is protected by the right to be tried within a reasonable time.  The “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” which includes stigmatization, possible disruption of family, social life and work, and uncertainty as to outcome and sanction, apply to some degree to Mr. Barinecutt although he is not facing a possible criminal sanction.  It is not a pre-condition to finding interference with a security interest that he be facing a criminal sanction: Mills v. The Queen 1986 CanLII 17 (SCC), [1986] 1S.C.R. 863 pp 919-20 as quoted in New Brunswick v. G (J), para 62.

[36]        In considering s. 7, the Chief Justice said:

[37]        If there is, as I have found, a deprivation of liberty or security of the person, the next step is to determine whether that deprivation has occurred in a manner consistent with the principles of fundamental justice, both in terms of process and the ends the deprivations seek to achieve, as measured against basic tenets of our judicial and legal system generally: Godbout v. Longueuil (City), para 74-76.

[38]        The stated purpose of the victim surcharge is to make offenders accountable to victims and to generate revenue for victim services (Criminal Code s. 737(7), and see for example House of Commons Debates September 12, 2012 pp 10048 - 10059; December 11, 2012 pp13173-13174, and House of Commons Standing Committee on Justice and Human Rights, October 23, 2012 pp1-9).

[39]        Prior to October 24, 2013, exemptions to the victim fine surcharge were granted more frequently than the surcharge was applied.  The rate of exemptions ranged from 48% in Prince Edward Island to 96% in Nunavut. There was also a wide variation in imposition rates within the same province. If an exemption were granted the Criminal Code stipulated that reasons were to be entered in the record of proceedings or written reasons were to be issued (Criminal Code s. 729.9 (3) R.S.C. 1985 c. 23 (4^th sup.). However, frequently no reason was recorded beyond “undue hardship”.

[40]        Brett Wilmer, a Manager of Strategic Business Analysis for the Criminal Justice Branch in the Province of British Columbia analysed the reports of sentencing orders from 2009 - 2014.  Prior to October 24, 2013, he found the victim fine surcharge was imposed 32% of the time. For districts where the data was available, he compared the local poverty rates as against the imposition of the victim fine surcharge.  He found a statistical correlation of 21% between local income and surcharge rates. This of course assumes that the local income of the general population is representative of the income of offenders before the court within a community. Widely available social science research does not bear this out.  Offenders are usually among the more marginalized individuals in a community and frequently have multiple barriers to educational success and ongoing employment, affecting their earning ability.

[41]        Money collected from victim fine surcharges goes into a special account of the consolidated revenue fund, the “Victim Surcharge Special Account”.  Monies in that account are spent in accordance with the Victims of Crime Act, R.S.B.C. 1996 c. 478, and the Criminal Code, and are used to provide frontline services to victims of crime and for the processing of victim impact statements (Taryn Walsh Affidavit, sworn July 15, 2014).

[42]        Is there a direct connection between the purpose of the law and its effect on Mr. Barinecutt, in the sense that the effect on him bears some relation to the law’s purpose: Canada A.G. v. Bedford para 111? The effect of the victim surcharge on Mr. Barinecutt is to saddle him with a debt that he will likely never be able to pay.  If collection measures are used to attach any tax refund he may be entitled to in the future, this will have an effect on him far greater than it would on a healthy, gainfully employed and reliably housed individual. Further, the administrative collection proceedings entail a cost to government, as would an application for a warrant of committal to enforce payment.  The cost of these actions might be more properly applied to victim services. Because the waiting time before he can apply for a record suspension does not begin to run until the victim surcharge is paid, Mr. Barinecutt is effectively prevented from full rehabilitation and reintegration into society. I find there is no rational connection between these consequences and the object of increasing accountability to victims and ensuring consistent collection of funds for victims’ services. The arbitrary nature of the victim surcharge results in it having an effect on Mr. Barinecutt that is grossly disproportionate to the legislative goal.

[43]        “Where the deprivation of the right in question does little or nothing to enhance the state’s interest….a breach of fundamental justice will be made out, as the individual’s rights will  have been deprived for no valid purpose.” (Rodriguez v. British Columbia (Attorney General) p. 47 -8)

[44]        Therefore, I find the victim surcharge infringes Mr. Barinecutt’s s. 7 Charter right to liberty.

[45]        Section 12 of the Charter reads: 

[46]        Mr. Barinecutt argues that the victim surcharge renders his sentence grossly disproportionate and is therefore cruel and unusual treatment or punishment, contrary to the Charter.

[47]        Crown argues that while the victim surcharge may be a “treatment” under s. 12, it is not a “punishment”. It has a separate and more limited enforcement regime under s. 737(9).

[48]        Not all court orders which flow from criminal convictions are punishments. For example, imprisonment in lieu of non-payment is an enforcement mechanism, and not a punishment (R. v. Katchatourov, para 22).   Crown says one must look to the intention of Parliament and the substance and policies behind the victim surcharge.

[49]        A victim surcharge is not akin to forfeiture.  Forfeiture deprives the offender of the proceeds of his or her crime, and deters potential offenders and accomplices. While forfeiture is technically part of the sentence, its purpose is replacement of the proceeds of crime, not punishment: R. v. Lavigne para 25-6. A victim surcharge does not replace anything relating to an offence.

[50]        Neither is a victim surcharge a tool meant to assist and streamline criminal investigations as a Sex Offender Information Registration Act order is intended to do: R. v. Cross; R. v. S.C.C.

[51]        Nor is the surcharge a form of restitution, which may be imposed in addition to any other measure imposed on an offender, as distinguished from any other punishment imposed on an offender. The victim surcharge does not compensate an actual loss to an identified person or entity and is not meant to make a victim whole for his or her loss. The ability to order imprisonment in default of payment is inconsistent with the concept of restitution: R. v. Cloud para 40.

[52]        The surcharge is not a collateral consequence, such as deportation, which operates independently from, but is conditional upon, a sentence. It is an integral element of the sentence:  Cloud, para 24.

[53]        When enacting the changes to the victim fine surcharge, government spoke of   the surcharge as part of the sentence (see for example House of Commons Standing Committee on Justice and Human Rights, October 23 2012, p.7) an additional penalty, and as a measure ensuring accountability, accountability being one of the objectives of sentencing pursuant to s. 718 of the Criminal Code.

[54]        Considering next the substance of the legislation, s. 737 (1) of the Criminal Code, as amended, reads (in part):  “…shall pay a victim surcharge, in addition to any other punishment [emphasis mine] imposed on the offender.” The victim surcharge is, on a plain reading of the section, a punishment.

[55]        The definition section of Part XXIII of the Criminal Code (s. 716) defines a fine as including “a pecuniary penalty or other sum of money, but does not include restitution”.  The victim surcharge falls within this definition.

[56]        Section 737 of the Criminal Code dealing with the victim surcharge is in the “Fines and Forfeiture” section of the Code.

[57]        Victim surcharges are treated like fines in fine option programs, where they exist. (Criminal Code s. 737(9)).

[58]        The surcharge operates as a monetary penalty imposed on all offenders based on the type of offence, or if a fine is imposed, the amount of the fine. Removing the word “fine” from what it was formerly called, the “victim fine surcharge”, does not change its substance.

[59]        I find the analysis of Justice Paciocco in R. v. Michael persuasive. In a thorough discussion, he considers (among other things) the test in R. v. Rogers 2006 SCC 15 (CanLII), [2006] S.C.J. 15 that a consequence will constitute a punishment “when it forms part of the arsenal of sanctions to which an accused may be liable in respect of the particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing.” The victim surcharge is part of the arsenal of sanctions to which Mr. Barinecutt will be liable in respect of his offences, and, the sanction is imposed in furtherance of the purpose and principles of sentencing, namely, promoting accountability in the offender.

[60]        The victim surcharge is a pecuniary penalty payable by Mr. Barinecutt as a consequence of his offences, a penalty that by any other name is still a fine and therefore is a punishment.

[61]        For Mr. Barinecutt to establish that the victim surcharge is cruel and unusual punishment, he must demonstrate that it is grossly disproportionate to the punishment that is appropriate, considering the nature of the offence, and his circumstances. It may be grossly disproportionate as applied to Mr. Barinecutt, or because it would have a grossly disproportionate effect on other offenders in reasonably foreseeable situations. It must be more than merely excessive: R. v. Nur, para 39).

[62]        In considering whether the victim surcharge is grossly disproportionate, I must determine a proportionate sentence with reference to the sentencing objectives and principles in s. 718, 718.1 and 718.2 of the Criminal Code. The overriding principle is that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender: Nur para 40 - 42, 46; R. v. Nasogaluak para 41.

[63]        The sentence I determined proportionate for the two breaches of recognizance Mr. Barinecutt committed was twenty days’ custody, time already served, on each offence, concurrent, followed by one year of probation with a number of restrictive and rehabilitative conditions. Does the addition of the mandatory victim surcharge of $200 render this sentence grossly disproportionate?

[64]        The purpose of the victim surcharge is to increase accountability of offenders.  This is a valid sentencing purpose, being one of the enumerated factors on sentencing in s. 718 of the Criminal Code.

[65]        However, the application of a mandatory punishment, or fine, has the potential to depart from the principle of proportionality as it does not allow for a review of all of the relevant factors so as to reach a proportionate result: Nur, para 44.  The payment of a fixed amount for each of all summary and all indictable offences where a fine is not imposed would on its face offend the principle of proportionality in sentencing.

[66]        Would Mr. Barinecutt be able to pay the surcharge within two months of its imposition?  As stated in the analysis above, I think this unlikely. He has been receiving disability benefits since November, 2013. He does not have a home. While he reported completing a trades-based program, I am skeptical about the veracity of this reporting, as he did not finish high school and has a number of cognitive and physical challenges. He has a protracted criminal record. He has a problem with substance misuse. Therefore, he faces multiple barriers to establishing himself in a situation where he would have the financial and logistical wherewithal to pay the fine. Those same barriers would operate to make it improbable that he would have the personal resources to apply to the court to have the time to pay the surcharge extended. Even then the prospect of his being able to eventually make the payment is questionable.

[67]        As British Columbia has no fine-option program, the only alternative to the surcharge is a term of imprisonment which may only be imposed, after a hearing, if the offender has no reasonable excuse for non-payment.  

[68]        If the province, then, followed through with the enforcement measure available to it, attaching any funds due to Mr. Barinecutt from the Canada Revenue Agency, it may from time to time garner some funds through a GST rebate or tax refund.

[69]        The impact of the loss of these funds on Mr. Barinecutt is significantly different from the impact on an individual employed at a minimum wage job and who has a place to call home. If the comparison were extended to someone who has the ability to earn a greater income, the difference in the impact is extreme.

[70]        I find, on a balance of probabilities, that Mr. Barinecutt would not be able to pay the victim surcharge within the time period prescribed by the regulations, nor would he likely be able to extinguish the debt at any time in the near future. The effect on him is well described in R. v. Michael:

[71]        Even if Mr Barinecutt were to rely on the Crown not to pursue him for payment, he still is constrained by the situation of not being able to apply for a record suspension.  As long as the surcharge remains unpaid, the waiting time required before applying for a record suspension does not start to run. (Criminal Records Act R.S.C. 1985 c. C-47, s.4 (1); Parole Board of Canada “Record Suspension guide, Step-by-Step Instructions and Application Forms”).  As a result, he may have to wait longer than an offender with an ability to pay which may reduce his prospects for employment.

[72]        He cannot, on his own motion, apply to serve time in custody to extinguish the surcharge: R. v. Rowsell; R. v. Chausse; and if he did, it should properly be denied: R. v. Wu.

[73]        I believe that a reasonable person, properly informed would find the imposition of a mandatory $200 surcharge on someone with Mr. Barinecutt’s personal characteristics, and in his circumstances to be grossly disproportionate.

[74]        If I am wrong in his specific case, is it reasonably foreseeable that the mandatory imposition of a victim surcharge will impose a punishment that is grossly disproportionate to some offenders’ situations? In framing a reasonable hypothetical, one need only look to recent decisions which have considered the victim surcharge, for example: R. v. Flaro; R. v. Tinker; R. v. Michael; R. v. Cloud. A review of the characteristics of the offenders in those cases reveals that the imposition of a victim surcharge will impose grossly disproportionate sentences on  offenders whose circumstances include mental health issues, homelessness, chronic unemployment, limited financial stability only through income assistance benefits, drug and/ or alcohol addiction, cognitive and developmental delays, and, impact directly or indirectly from native residential school programs and other circumstances which cause aboriginal offenders innumerable challenges.

[75]         The surcharge is likewise grossly disproportionate when imposed in conjunction with an absolute discharge granted to the type of offender described above. The offender will not benefit from the discharge until the surcharge is paid. Until then, he will be burdened with a criminal record.

[76]          An additional $200 penalty may be an appropriate and just sanction for many offenders, but the impact on Mr. Barinecutt or any like-situated offender is grossly disproportionate to the law. 

[77]        Finally, considering that I found the victim surcharge infringes Mr. Barinecutt’s s. 7 liberty interest, I note the following: where a principle of fundamental justice embedded in s. 7 gives rise to a constitutional remedy against a punishment,  s. 12 would also be infringed: R. v. Malmo-Levine, para 160.

[78]        In summary, I find Mr. Barinecutt has met the burden upon him on a balance of probabilities to establish that the victim surcharge infringes his s. 7 and s. 12 Charter rights.

[79]        Counsel are at liberty to set a date for the s. 1 Charter argument.