500-10-005575-145; 500-10-005586-142; 500-10-005587-140;PAGE: 1
500-10-005598-147; 500-10-005602-147; 500-10-005655-145
R. c. Cloud / 2014 QCCA 1680COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF / MONTREAL
No: / 500-10-005575-145; 500-10-005586-142; 500-10-005587-140;
500-10-005598-147; 500-10-005602-147; 500-10-005655-145
(500-01-098201-137; 500-01-101029-145; 500-01-101894-142;
500-01-101851-142; 500-01-101852-140; 500-01-101853-148;
500-01-098761-130; 500-01-104832-149)
DATE: / SEPTEMBER 17, 2014
CORAM: / THE HONOURABLE / NICOLE DUVAL HESLER, C.J.Q.
ALLAN R. HILTON, J.A.
FRANÇOIS DOYON, J.A.
N°:500-10-005575-145
(500-01-098201-137)
HER MAJESTY THE QUEEN
RESPONDENT – APPELLANTplaintiff
v.
RICHARD JASON CLOUD
APPLICANT – RESPONDENTaccused
and
THE ATTORNEY GENERAL OF QUEBEC
MISE EN CAUSE – Mise en cause
and
THE ATTORNEY GENERAL OF CANADA
MIS EN CAUSE – Mis en cause
N°:500-10-005586-142
(500-01-101029-145) SEQ ACC.001
HER MAJESTY THE QUEEN
RESPONDENT – APPELLANT plaintiff
v.
DAVE O'FARRELL
APPLICANT – RESPONDENTaccused
and
THE ATTORNEY GENERAL OF QUEBEC
MISE EN CAUSE – Mise en cause
and
THE ATTORNEY GENERAL OF CANADA
MIS EN CAUSE – Mis en cause
N°:500-10-00587-140
(500-01-101894-142)
HER MAJESTY THE QUEEN
RESPONDENT – APPELLANT plaintiff
v.
SHARON BARON
APPLICANT – RESPONDENTaccused
et
THE ATTORNEY GENERAL OF QUEBEC
MISE EN CAUSE – Mise en cause
and
THE ATTORNEY GENERAL OF CANADA
MIS EN CAUSE – Mis en cause
N°:500-10-005598-147
(500-01-101851-142; 500-01-101852-140; 500-01-101853-148)
HER MAJESTY THE QUEEN
RESPONDENT – APPELLANT plaintiff
v.
BOON SEAR PHENGSAI
APPLICANT – RESPONDENTaccused
and
THE ATTORNEY GENERAL OF QUEBEC
MISE EN CAUSE – Mise en cause
et
THE ATTORNEY GENERAL OF CANADA
MIS EN CAUSE – Mis en cause
N°:500-10-005602-147
(500-01-098761-130)
HER MAJESTY THE QUEEN
RESPONDENT – APPELLANT plaintiff
v.
ISABELLE BENOIT
APPLICANT – RESPONDENT accused
and
THE ATTORNEY GENERAL OF QUEBEC
MISE EN CAUSE – Mise en cause
and
THE ATTORNEY GENERAL OF CANADA
MIS EN CAUSE – Mis en cause
N°:500-10-005655-145
(500-01-104832-149)
HER MAJESTY THE QUEEN
RESPONDENT – APPELLANT plaintiff
v.
JIMMY MÉTHOT
APPLICANT – RESPONDENT accused
and
THE ATTORNEY GENERAL OF QUEBEC
MISE EN CAUSE – Mise en cause
and
THE ATTORNEY GENERAL OF CANADA
MIS EN CAUSE – Mis en cause
JUDGMENT
[1]The applicants, by motion entitled Motion to Raise a New Constitutional Issue, seek permission to challenge on appeal the constitutionality of the mandatory surcharge regime, an issue that was not debated at trial.
[2]For the reasons of Doyon J. A., with which Hilton J. A., concurs, THE COURT:
[3]DISMISSES the motion.
[4]For her part and for other reasons, the Chief Justicewould havegranted the motion.
[5]The motion for leave to appeal and to join in the hearing of the other appeals in the Jimmy Méthot file (500-10-005655-145) is not contested and is hereby GRANTED.
NICOLE DUVAL HESLER, C.J.Q.ALLAN R. HILTON, J.A.
FRANÇOIS DOYON, J.A.
Mtre Dionisios Galiatsatos
Directeur des poursuites criminelles et pénales
For respondent
Mtre Yves Vaillancourt
Chalifoux, Montpetit, Vaillancourt, Paradis & Ass.
For the applicant Richard Jason Cloud
Mtre Stéphanie Delisle-Goudreau
For the applicant Dave O'Farrell
Mtre Yves Gratton
Aide Juridique de Montréal
For the applicant Sharon Baron
Mtre Antoinette Stuart
Conant Gemme
For the applicant Boon Sear Phengsai
Mtre Julie Vincent
For the applicant Isabelle Benoit
Mtre Steve Hanafi
Steve Hanafi avocat
For the applicant Jimmy Méthot
Mtre Éric Dufour
Direction Générale des affaires juridiques et législative
Bernard, Roy (Justice-Québec)
For the mise en cause The Attorney General of Quebec
Mtre Gilles Villeneuve (absent)
Service des poursuites pénales du Canada
For the mise en cause The Attorney General of Canada
Date of hearing: / June 3, 2014
500-10-005575-145 500-10-005586-142; 500-10-005587-140;PAGE: 1
500-10-005598-147; 500-10-005602-147; 500-10-005655-145
REASONS OFDOYON, J.A.[6]The applicants have pleaded guilty to various accusations requiring the payment of the mandatory victim surcharge (art. 737 Cr. C.). This surcharge is payable for every count on which they were found guilty. They now seek authorisation to raise, on appeal, a new constitutional argument pertaining to this legislative provision.
The Context
[7]Since the Increasing Offenders’ Accountability for Victims Act[1](the “Act”) entered into force on 24 October 2013, the mandatory surcharge amounts to 30% of the imposed fine or, if no fine is imposed, to $100 per summary conviction and to $200 per indictable offense. Since that date as well, the sentencing court no longer has discretionary power to exempt the offender from the surcharge. That being said, an offender unable to pay the surcharge can perform community service where such program exists, as is the case in the province of Quebec.
[8]The prosecution appeals the applicants’ sentences on the ground that the trial judges erred in applying the provisions pertaining to the mandatory surcharge.
[9]Without delving into details, the prosecution submits that the judges below have, in a way, refused to give effect to the Act either 1) by adding a minimum fine (in the range of $5 per count) to a prison term followed by a probation order, so as to substantially reduce the amount of the mandatory surcharge ( to $1.50), 2) by granting an excessive delay to pay it (5 years), or 3) by granting no delay for payment, but reducing instead the prison term for each count to compensate for the prison term resulting from non payment, thus annihilating the Act’s effects.
[10]In response to the prosecution’s appeals, the applicants request permission to raise a new argument on appeal, that is, the unconstitutionality of the Act, which allegedly violates sections 12 and 7 of the Canadian Charter of Rights and Freedoms. To that end, they seek authorisation to serve notice to the Attorneys General of Canada and Quebec, notably that required under section 95 of the Quebec C.C.P.
[11]The respondent and the third parties oppose the motion on the ground that such an argument should first have been invoked at trial, allowing for a sufficient evidentiary record with regards to the particular circumstances of the applicants as well as to the alleged violations of the Charterand, if it arises, to circumstances relevant under section 1 of the Charter. Without a full record, they argue, the debate would be taking place in a factual vacuum incompatible with a thorough analysis of the issue. They add that the Court of Appeal is not the appropriate forum to compile the record, which, moreover, is likely to extend beyond documentary evidence. They raise the possibility that experts will be called upon to testify, for instance, on the objectives of the Act, or the applicants to testify on their personal circumstances.
The General Rule
[12]The applicants acknowledge that as a general rule, raising new arguments on appeal is forbidden absent exceptional circumstances. Such exceptions include, for instance, a change in the law subsequent to the trial judgement or a declaration of unconstitutionality depriving the judgement of its juridical basis.[2] That being said, the evidentiary record must also be sufficient to allow a ruling on the new issue, and the failure to raise the issue at trial must not result from a strategic decision. The Court may thus use its discretion to “[translation] accept or reject a new ground on appeal, keeping in mind that a party who was not afforded the opportunity to submit evidence at trial in order to respond to the new issue may suffer a prejudice.”[3]
[13]As the Ontario Court of Appeal points out, appellate courts will generally dismiss a motion to raise a new issue when the missing evidence precludes a thorough examination of that issue, especially when a Charter right is at stake:
[36]At the trial, the appellant had the onus of demonstrating any Charter breach on which he would rely. He chose to try to establish only a breach of s. 8. This court will only consider Charter arguments not raised at trial in limited circumstances. First and foremost, this court will not consider new Charter issues unless the trial record admits of a full, fair and reliable assessment of that claim. The record is silent on the factual questions underlying the appellant’s claim that he was not told that he was being detained in relation to the homicide and that he was not told that he had a right to counsel in relation to that matter. The appellant proceeds on the basis that the court should simply assume that these violations occurred because the initial efforts to advise the appellant of the reasons for his arrest and his right to counsel were foiled by the incompetent interpreter. This court cannot make any such assumption. The trial record does not address these issues. For that reason alone, it would be inappropriate for this court to deal with this issue: R. v. Jamieson (1998), 131 C.C.C. (3d) 347 at 349-50 (Ont. C.A.).[4]
[Emphasis added]
[14]In a subsequent decision, the same Court of Appeal added the following:
[43]Appellate courts are generally reluctant to entertain Charter arguments that are raised for the first time on appeal. This reluctance stems from concerns about prejudice to the other side arising from an inability to adduce necessary responding evidence at trial, the lack of a sufficient record to make necessary findings of fact, and society’s overarching interest in the finality of litigation: R. v. Warsing (1998), 130 C.C.C. (3d) 259 at 271-72 (S.C.C.); R. v. Brown (1993), 83 C.C.C. (3d) 129 at 133-34 (S.C.C.); and R. v. R.R. (1994), 91 C.C.C. (3d) 193 at 198-99 (Ont. C.A.).[5]
[15]In R. v. Chambers, it recently stated:
[45]The appellant did not raise these issues at trial, instead advancing them for the first time on this appeal hearing. It is well-established that appeal courts generally will not entertain arguments not made at trial. This general rule applies to constitutional arguments raised for the first time on appeal, regardless of the constitutional remedy sought: see for example R. v. Roach, 2009 ONCA 156, [2009] O.J. No. 662, at para. 6. The appellant's failure to mount his Charter ss. 7 and 12 arguments at trial deprives this court of the reasoned analysis of the trial court on these issues.[6]
[16]This Court concludedin R. c. Rudnicki[7] thatexceptwhen the interpretation of the relevant rule of law has been modified since the trial, the majority and the dissent in R.v. Brown[8] both yield the same result when the accused has failed to raise an argument at trial and to bring forward relevant evidence, except if a new interpretation of the Law has occurred since the trial. Writing for the majority, Hilton J.A. said:
[Translation] 81 The Supreme Court majority ruled that the Alberta Court of Appeal erred in refusing to hear the new issue. It ordered a new trial to allow Brown to present evidence in order to determine whether, in the light of the Hébert case, he had renounced his right to silence or whether he knew the police lead the interrogations. The Hébert case had clarified section 7 of the Charter, such that it was legitimate to raise a new issue on appeal which, given the prevailing case law at the time, was not raised at trial.
82 That is not so in the case at bar. The transcript of the Court of Quebec submissions reveals that the appellant’s counsel, Mr. Latour, renounced a constitutional challenge. He chose to question the application of the Regulation and the Directive instead. In doing so, he made a strategic choice.
83 In the Brown case, dissenting Justice l'Heureux-Dubé would have refused that the new issue be brought on appeal. She devises a three-part test which is quite useful in the case under review:
In summary, the following three prerequisites must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time on appeal. First, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial. Third, the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal.
84 In Brown, Justice l'Heureux-Dubé would have dismissed the appeal for the following reasons:
In the present case, none of these conditions are satisfied. There has been no change to the substantive offence. The issue was not raised at trial, with the consequence that the record necessary for appellate review of the issue is unavailable. As I will discuss in more detail below, because of the manner in which the trial was conducted, there has been no denial of justice to the appellant. In my view, the Court of Appeal properly concluded that no appeal on this new issue should be entertained.
85 Applying the principles in the majority or the dissenting opinion obviously leads to the same result.
86 In my opinion, the Court should not deal with the constitutional issue that Rudnicki raised on appeal. He could have raised it at trial but chose not to. In principle, an appellate tribunal should not entertain a question of law of that nature when it was not analysed at trial, especially when the State was unable to submit evidence pertaining to section 1 of the Canadian Charter. This goes to the very nature of an appellate tribunal.
[17]In sum, courts frequently use the criteria developed by Justice L’Heureux-Dubé in R. v.Brown.
[18]Furthermore, the Court of Appeal must ensure that refusing to hear the new issue on appeal will not entail a denial of justice.
[19]In response to these concerns, the applicants submit the following arguments:
[Translation] a) Considering the new issue on appeal will not cause a real prejudice to the [respondent-appellant] or to the Attorney General because the submission of new evidence [seems], at first glance, […] [rather] unlikely or of limited scope. (See Boisclair c. R., Montreal, 500-10-0048310119, para. 8) The evidence on record allows a thorough analysis of the new issue, as per allegations 3 to 17 of this motion;
b) While the constitutional issue was not raised at trial, the applicants did not omit it for strategic reasons. They still proposed Justice Healy’s restrictive interpretation at trial, an interpretation likely to limit the scope of the legislative amendments;
c) For that matter, the amendments to the Increasing Offenders’ Accountability for Victims Act were declared unconstitutional and inoperative on January 6, 2014by the Honourable E. M. Schnall, O.C.J. in R. v. Flaro, 2014 ONCJ 2, [2014] O.J. No. 94, as per the judgment submitted under the annex no. 12;
d) In this respect, the Honourable Justice Schnall states the following at paragraphs 20, 21 and 34 of his reasons:
20 The imposition of a fine, as a punitive measure, imposed without the ability to scrutinize each case on its own merits is unconstitutional, where it results in a sentence which is grossly disproportionate to the offence and the offender's circumstances. It is contrary to section 12 of the Charter.
21 It would outrage the sentiments of an informed public if it were to realize the arbitrary nature of this mandatory provision which fails to consider the individual circumstances of the offender. An offender with substantial income is dealt with in the same way as an impecunious offender, with no consideration of ability to pay. In the cases I referred to above, this results in a sentence which is not only beyond excessive; the mandatory provisions impose a crushing debt on an individual who has no reasonable expectation of ever being able to pay: this constitutes cruel and unusual punishment. In those cases it forces a person to have to choose between buying food and paying the VFS.
[…]
34 Any provision that fails to take into account a defendant's mental health status and ability to pay, fails to satisfy the factors enumerated above and constitutes cruel and unusual punishment, as being grossly disproportionate.
e) Given the declaration of unconstitutionality of those same provisions, it would be unjust to deny the applicants the permission to raise this new issue on appeal, especially since it is a pure question of law.
The Applicants’Choice
[20]We know that the trial judges rendered their decisions without the applicants challenging the constitutionality of the Act. In the case of Mr. Cloud, one may even suggest that the trial judge tried to get the applicants to raise the issue, albeit unsuccessfully. In the other cases under study, the trial judges simply referred to the judgement in Cloud. In sum, the applicants chose not to mount a constitutional challenge. This choice bears consequences.
[21]They now submit that their personal and financial situation was not conducive to raise such a resource-intensive argument at trial. I have difficulty accepting this argument. Their situation has certainly not improved since; so that it is hard to sustain that they are now well-placed to do so while they were not at trial.
[22]The applicants made a choice which, to a certain extent, worked in their favour, as the trial judgements considerably curtailed the effects of the mandatory surcharge. This curtailing is now the main argument of the prosecution, but that was eminently foreseeable. In short, the applicants’ choice at trial paid off and I doubt it advisable to allow them to reorient their pleading now that the prosecution has filed an appeal.
The Need to Submit Evidence
[23]It seems to me beyond question that should the Court authorize the sought addition, a new body of evidence would have to be submitted. The respondent and third parties would otherwise suffer a prejudice.
[24]As the respondent and the Attorneys General argue in their joint submission outline:
[Translation] Had he been party at trial, the Attorney General could have first interrogated each applicant on their assets–their capacity to pay a surcharge–or on the possibility, for them, to perform community service (s. 786 Cr. C.). The Honourable Judge Braun, J.Q., briefly considered the matter regarding the applicant Phengsai, but concluded that he lacked any knowledge of his financial information. The applicant Cloud mentioned he was expecting some money from a New Brunswick Band Council, but the file is incomplete as to his actual financial ability to pay a surcharge. As for the other applicants’ appellate files, they are silent on the issue. Yet the applicants’ ability to pay the surcharges required by the Act and the possibility to perform community service can be important factors in the analysis of the constitutional validity of the Act. Moreover, the Attorney General could have demonstrated the concrete effect of the surcharge on each applicant. He could have proven the existence of viable alternative measures as well.
Given the applicants’ choice, none of the preceding could be achieved. Yet, as the Court is well aware, judicial deference requires that a court only rule on a constitutional issue when necessary, if the facts of a case demand it.
[References omitted.]
[25]I agree with these remarks. The trial record is undoubtedly insufficient to support the sections 12 and 7 violations the applicants seek to raise in respect of their inability to pay the surcharge or to perform community service in lieu. Yet without evidence of a violation in their case, a constitutional argument cannot be raised.[9]