What does it mean to say that a law is constitutional or not? What are we getting at when a label of constitutionality is attached to a law? Of course on one level, we are asking whether a particular provision violates the Canadian Charter of Rights and Freedoms [Charter] (or is vires) – a technical exercise in constitutional analysis. But on another level, especially in the Charter context, we are concerned with how a provision operates in society and how it impacts Canadians. From this perspective we can capture both how laws operate on the books, and also the lived experience of the law.
The Supreme Court of Canada (“Supreme Court” or “SCC”)’s decision in R v Boudreault? [“Boudrealt”] sheds light on the importance of recognizing lived experience in constitutional analysis. Meanwhile, the dissent demonstrates the problems with reasoning in the abstract. Justice Martin, writing for a 7-2 majority, found that mandatory victim surcharges (MVS) are cruel and unusual punishment contrary to s 12 of the Charter. Importantly, at the foundation of her constitutional analysis is a concern for how mandatory fines are experienced by impoverished offenders. Justice Martin’s awareness of the lived reality of the MVS on impoverished offenders is clear in two areas of her reasons: her discussion on reasonable hypotheticals, and her analysis of the provision’s interrelated harms.
What is a Mandatory Victim fine Surcharge and Why Would It Be Unconstitutional?
In Boudreault, the SCC jointly heard and decided four appeals, all challenging the constitutionality of the s 737 of the Criminal Code, RSC 1985, c. C-46. Per s 737, anyone who pleads or is found guilty of an offence under the Code (or the Controlled Drugs and Substances Act, SC 1996 c.19) is required to pay a victim surcharge. The fine applies to all offences and is calculated per offence, with an $100 fine imposed for every summary conviction and $200 per indictable offence. Since most offenders are convicted or plead guilty to multiple offences at a given sentencing, the total surcharge quickly adds up. While this charge is not new – it was first introduced in the 1980s – in 2013 the section was amended to rescind the judicial discretion to waive or decrease the MVS?.
At issue in Boudreault?was the new mandatory nature of the fine. Does a mandatory fine per conviction for all offenders constitute cruel and unusual punishment contrary to s 12, particularly for impoverished individuals? Both the Ontario and Quebec appellate courts found that the MVS failed to meet the high threshold for cruel and unusual punishment.
The s 12 jurisprudence is relatively sparse, partially because there is a high threshold for establishing that punishment is cruel and unusual. To be cruel and unusual, a punishment or treatment of an individual by the state must be so abhorrent as to shock community standards. The Supreme Court has developed a two-part test for establishing that an impugned provision meets the gross disproportionality standard necessary for violating s 12. As a threshold matter, it must first be established that what is at issue is a “punishment” and not some other form of sanction or policy (such as parole, which is not penal but supervisory). For Justice Martin, it was clear that the MVS met the Court’s criteria for punishment because MVS is a sanction flowing from conviction, imposed to further the goals of sentencing, and impacting offenders’ liberty and security interests. Then, a court will identify what a fit punishment is and compare the actual punishment to the ideal one. If the actual punishment is grossly disproportionate in impact or effect as compared to a fit sentence, it constitutes cruel and unusual punishment and violates s 12.
Linking the Real and the Abstract: Reasonable Hypotheticals
A court may decide whether punishment is cruel and unusual based on a “reasonable hypothetical.” This means that instead of or in addition to deciding the constitutional challenge based on the circumstances of the particular offender before the court, thee court may reason in the hypothetical by asking, How would this provision impact an individual who could reasonably be subject to this law? The ability of courts to rely on reasonable hypotheticals to assess a s 12 violation is notable because it disrupts the Court’s holding in MacKay v Manitoba  2 SCR 357 that Charter cases must be decided on a thorough factual record. Yet at the same time it reflects an understanding, one emphasized by former Chief Justice McLachlin at para 122 of Canada v Bedford? 3 SCR 1101, that a violation is made out if a law has a grossly disproportionate effect on one person. In a sense, reasonable hypotheticals allow judges to consider a law’s operation more broadly by taking into account its impact on individuals who may not be in front of the court. Given the heavy resource costs of a constitutional challenge, the use of reasonable hypotheticals a welcome method of improving access to justice.
Justice Martin took an innovative approach to the question of whether the s12 analysis should consider only the appellants’ circumstances or whether the Court should also consider the MVS’s impact on a reasonable hypothetical offender. She noted that in Boudreault, most of the appellants’ circumstances bore remarkable similarities: most were chronically impoverished, living with disability and/or addiction, and subsisting on a meagre social assistance income. “Without a doubt,” Justice Martin wrote, “offenders with some or all of these characteristics appear with staggering regularity in our provincial courts” (Boudreault, para 55). In a move that combines the imaginary with the real, Justice Martin selected a Mr. Michael – an Indigenous offender who was not party to the appeal but whose case was discussed in the lower courts – as a representative offender. In Justice Martin’s view, Mr. Michael was “‘an exemplar of the tragedy of Aboriginal offenders that plays itself out on a daily basis in our criminal courts’” (Boudreault para 55), and an individual whose reality informed the Court’s analysis despite the fact that he was not formally a party. The Court’s choice of representative offender is important because it recognizes both the sheer diversity and the tragic similarity among individuals caught in the criminal justice system.
MVS: A Cruel Web of Unusual Punishment
The first stage of the s 12 analysis is determining a fit sentence. Based on the appellants’ and representative offender’s circumstances, Justice Martin noted that a fit sentence would not include a surcharge. So the crux of the analysis is the second stage, whether the impact of the actual sentence, the MVS, rose to the unconstitutional level of grossly disproportionate?. The majority of the SCC held that the surcharge met the grossly disproportionate standard because of the four interrelated harms caused by a mandatory surcharge. Justice Martin first emphasized that the MVS is mandatory under the Criminal Code, and underscored that this absence of judicial discretion created disproportionate financial effects on certain offenders. For impecunious individuals like Mr. Michael, a $900 charge equals four months’ income, a “crushing sum” (Boudreault?para 66). This is especially problematic because the MVS must be imposed irrespective of whether the offence is a “victimless” administration of justice charge or if the offender is a “desperate, addicted, and marginalized” individual (Boudreault para 68). In these circumstances, the fine amount will not accurately reflect the offender’s moral culpability.
The Court noted that the MVS scheme caused three other harms in addition. Essentially, imposing the MVS invokes an indefinite cycle of interaction with the criminal justice system. The spectre of detention or imprisonment looms large for impecunious individuals. They are likely going to be subject to collection efforts – a provincial responsibility often operated by private collection agencies. Finally, even if their current financial circumstances warrant an extension of time to pay, impoverished individuals would have to continuously appear in Court to explain their inability to pay. This “ritual” not only precludes the possibility of acquittal, but also functions as a “public shaming” (Boudreault?para 77). The accumulated impact of the MVS meant that the provision caused grossly disproportionate harm, and its operation offended society’s standards of decency. The Court concluded that s 737 constitutes cruel and unusual punishment for the purposes of s 12, and could not be saved by s 1 (Boudreault?paras 95 – 97).
From Real Impact to Abstract Constitutionality: The Dissent
Justice Martin’s analysis engages with the reality of an impoverished and marginalized offender, charged with breaching probation, and a corresponding fine equating their monthly income. With this understanding at the foundation of the analysis, one can recognize that the fine’s impact and effect does not end with sentencing. The MVS does not operate on the books alone, nor does the experience of cruel and unusual punishment.
It is in, in my opinion, the analysis embedded in experience that is missing in the dissent. Justice C?té, joined by Justice Rowe, would have found that the MVS was constitutionally viable. For the dissenting judges, while the MVS may have caused disproportionate effects, such impacts did not meet s 12’s high gross disproportionality standard. Unlike Justice Martin’s approach to the MVS as invoking a series of events, the dissent analyzed the MVS in isolation. This approach immunized the MVS from any of its negative impacts, and correspondingly shifted the blame elsewhere. For example, the dissent noted that the fine amounts are not themselves exorbitant; rather, the fees are higher because the individual committed more offences. It is this assumption of moral culpability – the idea that high fines are the offender’s fault and that they should pay per wrongdoing – that protects the provision from the label of cruel and unusual. However, this statement also does not account for the varying level of moral blameworthiness among offenders, either because of their circumstances or because the offence is itself “victimless.”? There are other instances where the fault is shifted, for example where the dissent finds that severe stress cannot flow from the MVS because s 737 itself cannot lead to imprisonment. What was important for Justice Martin and irrelevant for the dissent is that other aspects related to administering the fine may lead to detention.
It is Justice C?té’s note that to reach the level of cruel and unusual a punishment should be similar in severity to a lobotomization (Boudreault?para 183) that demonstrates why reasoning in the abstract is problematic?. It is not that lobotomization isn’t cruel and unusual – rather, it is that such a procedure is at this point (thankfully) an extremely unusual penal policy in Canada. The dissent compared the MVS to an imagined treacherous procedure, and of course it failed to meet such a high standard. However, the majority was willing to see the cruel and unusual as it operates among us – in the looming spectre of imprisonment and ritual pleas to judges for extensions to pay. It is this cruel web of interrelated harms that rendered the surcharge so abhorrent as to violate s 12.
It is the majority’s grappling with the experience of unconstitutionality that is notable and important in Boudreault. The label of unconstitutionality is warranted because Mr. Michael and Mr. Boudreault experienced the MVS as cruel and unusual punishment. Yet the majority’s analysis does not come at the expense of stare decisis or loyalty to established analysis; as with the reasonable hypothetical, Justice Martin used reality to ground the abstract without collapsing the two. As such, reversing the recent trend towards suspended declarations of invalidity, the Court declared the provision of immediate no force or effect. As a prospective remedy, this declaration prevents the continued operation of a law deemed unconstitutional (even if it causes some logistical questions for court administrators). While the question of how Canada’s victim surcharge scheme will operate returns to Parliament, impecunious individuals will no longer be caught in its mandatory cycle of cruel and unusual punishment.