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Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Javier, 2014 ONCJ 361

[9] The Court in Michael considered the case of an impecunious aboriginal offender who was being sentenced on nine relatively minor summary conviction offences. The cumulative amount of his victim surcharges would have been $900 if no fines had been imposed as part of his sentence. The Court found, however, that as it could choose to impose nominal fines in addition to jail or probation for Mr. Michael, the victim surcharge did not constitute cruel or unusual punishment in his particular circumstances. In other words, the judge found that it was open to him to impose a fine of as little as one dollar on each count, reducing the victim surcharge to virtually nothing. However, when the judge considered a hypothetical situation (as he was required to do under the s. 12 Charter analysis as set out in Nur) of an offender in a slightly different situation from Mr. Michael he found that a judge who was required to sentence an offender on multiple counts to both jail and probation would be prevented from imposing a fine and would therefore have to impose the statutory amount of $100 in victim surcharges for each offence, for a total of $900. The Court found that the imposition of $900 in victim surcharges would be cruel and unusual punishment and therefore declared s. 737 of the Code to be of no force or effect.

[10] The application judge in Michael did a thorough and detailed review of the law. I find, however, that I cannot agree with his conclusion that the mandatory victim surcharge in s. 737 is cruel and unusual punishment that is in breach of the Charter. I am of the view that there is sufficient flexibility available to a sentencing judge to avoid undue harshness in the application of this section.

2. R. v. Michael, 2014 ONCJ 360

[75] Exposing those who are poor such as Mr. Michael to perpetual, unsatisfied, sentencing obligations also deprives them of the ability to repay their debt to society. Because they do not have the means to repay, they lose the opportunity to be restored. I do accept that many offenders lack the sophistication to delve into deep questions of legal philosophy and moral responsibility, and that is probably true of Mr. Michael. Still, the notion of just punishment has long carried the promise that after the eye is given for the eye, the offender has discharged their debt and reconciliation can begin. The whole idea of restorative justice legislatively endorsed in the Criminal Code and recognized to be of cultural significance to aboriginal offenders such as Mr. Michael, depends on reconciliation. Indeed, some legal philosophers have justified punishment on the basis that it is a kindness to offenders to punish them since it permits them to heal. Whether this is persuasive or not, the flip side is. It is a cruelty in some measure to tell an offender that they must discharge an impossible sentence before their debt is expunged. Reducing all of this to a less ethereal plane, the point is that so long as Mr. Michael fails to pay the victim surcharge he remains indebted and criminalised. He has not paid the price for his crime and remains unrequited because he is poor. It is worth noting in my view that when it comes to the sentence of discretionary fines the law avoids this consequence by prohibiting fines from being used to punish offenders who cannot pay. In the case of victim surcharges, imposing unpayable monetary penalties is a legislatively accepted consequence. If it proves to be true that Mr. Michael never gets out from under the debt the impugned legislative scheme seeks to impose, it is a consequence that would befall him. He will remain indebted to society with all of the stigma and stress that imposes.

[76] As indicated, Mr. Konyer identified still other collateral consequences that would occur from overlong or perpetual poverty-caused non-payment by Mr. Michael, even if he is never actually deprived of the money. The Crown urges that many of these concerns are unrealistic in his case. The Crown urges that so long as Mr. Michael is unable to pay the victim surcharge, for example, it is unrealistic to imagine him undertaking licenced activities, and so he will not be affected by the collection strategy available under Criminal Code section 734.5 of refusing to give or renew licences and permits to him until a victim surcharge debt is discharged. The Crown also points out that it will not be victim surcharge that impairs his credit rating. I agree with these base observations, and as I pointed out during argument, the same point can be made in the case of a record suspension. The application for a record suspension costs $631. If Mr. Michael can pay that sum he can pay the victim surcharge.

3. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC)

1 L’Heureux-Dubé J. — Regulations made pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, empower the respondent Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act should be granted. At the centre of this appeal is the approach to be taken by a court to judicial review of such decisions, both on procedural and substantive grounds. It also raises issues of reasonable apprehension of bias, the provision of written reasons as part of the duty of fairness, and the role of children’s interests in reviewing decisions made pursuant to s. 114(2).

I. Factual Background

2 Mavis Baker is a citizen of Jamaica who entered Canada as a visitor in August of 1981 and has remained in Canada since then. She never received permanent resident status, but supported herself illegally as a live-in domestic worker for 11 years. She has had four children (who are all Canadian citizens) while living in Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in 1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms. Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. She applied for welfare at that time. When she was first diagnosed with mental illness, two of her children were placed in the care of their natural father, and the other two were placed in foster care. The two who were in foster care are now again under her care, since her condition has improved.

The most-consulted French-language decision was Syndicat de la fonction publique du Québec c. Québec (Procureur général), [2010] 2 RCS 61, 2010 CSC 28 (CanLII)

[1] Notre Cour est saisie de deux appels interjetés par le Syndicat de la fonction publique du Québec (« S.F.P.Q. »). Ce dernier représente deux salariés à l’emploi du gouvernement du Québec et régis par une convention collective intervenue avec celui-ci. Les fonctions de ces salariés ont pris fin. Avec le S.F.P.Q., ils contestent cette cessation d’emploi qu’ils considèrent comme un renvoi sans cause juste et suffisante. Toutes les parties reconnaissent aux salariés le droit de soumettre leur plainte de renvoi illégal à un décideur externe neutre. Le problème consiste à déterminer lequel de l’arbitre de griefs désigné par la convention collective ou de la Commission des relations du travail (« C.R.T. ») a compétence pour assumer ce rôle à l’égard des droits accordés aux salariés par l’art. 124 de la Loi sur les normes du travail, L.R.Q., ch. N‑1.1 (« L.n.t. »). L’appelant plaide que l’arbitre est compétent. L’intimé répond que ces affaires relèvent de la C.R.T. Outre cette question de choix du tribunal, ces appels soulèvent plus généralement la question des effets de la L.n.t., loi d’ordre public, sur le contenu des conventions collectives.

B. Solution

[2] À mon avis, la solution qui s’impose est la reconnaissance de la compétence de l’arbitre de griefs à se saisir de la plainte afin d’examiner l’équivalence de la procédure de grief et d’arbitrage prévue à la convention collective avec le recours offert par l’art. 124 L.n.t., et ce en raison de la portée d’ordre public de la L.n.t. sur le contenu des conventions collectives conclues en vertu du Code du travail, L.R.Q., ch. C‑27 (« C.t. »). Si la procédure de grief et d’arbitrage est équivalente, l’arbitre doit entendre le grief. Autrement, celui-ci doit être renvoyé devant la C.R.T. Pour les motifs qui suivent, je conclurais que les arbitres ont, en l’espèce, compétence pour entendre les griefs. J’accueillerais en conséquence les deux appels et je rétablirais le jugement de la Cour supérieure du Québec.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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