Sep 9, 2014

Judge finds himself persuasive and rules accordingly

R. v. Sharkey, 2014 ONCJ 437 (CanLII)

For a second time in as many weeks, Ontario Court Justice David Paciocco made clear his view that the mandatory victim surcharge provided for in the Criminal Code of Canada amounted to “cruel and unusual punishment” and was therefore unconstitutional.

In R. v. Michael, 2014 ONCJ 360, the consequence of that finding was his declaration that the requirement was of no force or effect. [CanLII Connects contributor Elizabeth LeReverend summarizes the Michael case: 'Roving Punishment,' Victim Surcharge Unconstitutional, Ottawa Judge Finds].
At issue in R. v. Sharkey, is whether it was open to the judge to treat his own ruling as binding, persuasive or even relevant in a case where the accused did not raise a Charter challenge to the impugned law:

The Crown position is that the decision that I rendered in R. v. Michael is not available to be used in your case unless an application is brought for Charter relief and the entire issue is re-argued again in front of me. Their argument is that the declaration is invalid since Mr. Michael’s case came before me, a provincial court judge, and that my jurisdiction is that of a statutory judge without authority to impose a declaration.

Disregarding as unpersuasive the arguments and jurisprudence advanced by the Crown, Judge Paciocco set out the juridical and rational logic behind the necessity of treating his own declaration of constitutional invalidity as determinative in the present case:

I begin by accepting that provincial court judges’ decisions are not binding on other courts. They are however precedents arrived at through considered deliberation and imposed on the facts of a particular case, having legal consequences for the persons before the Court. They are therefore of persuasive value with respect to the decisions made by other courts or by the same court in other cases.

[. . .]

Second, even if there is no power to make formal declarations in the full sense because those decisions are not binding on everyone, the decision of a provincial court judge is not confined to the case before it alone. The decision in R. v. Lloyd does not hold that and that would be inconsistent with the general principles of stare decisis. Judges are free to follow decisions of other provincial court judges.

[. . .]

In my view, it makes no sense to interpret a finding of a provincial court judge that a statute is invalid as nothing other than a personal outcome applicable to the case at hand. There is no indication in s.52 that anything other than a full declaration of no force or effect is available and there is no suggestion in Big M Drug Mart that anything less than a full declaration of invalidity was intended by Justice Dickson in the passage just quoted.

[. . .]

It should not be necessary in order to trigger that consideration 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 tremendous reflection, that the victim surcharge is unconstitutional as cruel and unusual treatment and punishment. It would be inappropriate, in my view, to require a Charter application to be brought in every case that comes before myself or any of my brother or sister judges before they can consider the persuasive impact of that decision.

[. . .]

Even if I accept, as I do, that the decision in R. v. Michael is not binding on other judges and it is a form of lesser declaration, the ordinary principles of stare decisis still apply. Those ordinary principles of stare decisis mean that a decision rendered by a provincial court judge remains a persuasive precedent, a considered adjudicated precedent in this case that the victim surcharge is unconstitutional. It cannot, in my view, be necessary for that ordinary principle of stare decisis to apply for the court files to be cluttered with repeated Charter applications. The precedent is available because it is a finding in law made by a judge that is a court of competent jurisdiction to render that decision.

If you practice criminal defence in Ottawa, there are clearly circumstances in which you will prefer to appear before Judge Paciocco. At the end of his ruling, he notes as follows:

In my view, not surprisingly, the decision in R. v. Michael is persuasive. I would not have taken the extreme measure of striking down a parliamentary provision had I not been thoroughly convinced that that was the correct legal outcome. I therefore propose to follow that provision in this case and in all other cases before me.

For anyone else wondering about the state of the law, things are a little more complicated. A day after Sharkey was heard, a different judge - of the same court and in the same city - expressly disregarded the Michael decision as unpersuasive. In R. v. Javier, 2014 ONCJ 361 (summarized here), the relevant provision of Criminal Code was considered valid and the victim surcharge applied.
Further complicating matters, is the question of the judge's correctness as a matter in law in interpreting the authority of his court to impose a declaration of invalidity in the first place. I'll leave that question for others to answer.
UPDATE: For those interested in a quick summary and analysis of R. v. Lloyd, see this one from CanLII Connects contributor Dallas Mack (who, as it happens, also appeared on behalf of the Crown in R. v. Michael).