This blog examines R v Boudreault, 2018 SCC 58, a very recent decision in which a majority of the Supreme Court struck down as unconstitutional the mandatory victim surcharge provision of the Criminal Code. The majority found that the provision constituted cruel and unusual punishment for impecunious offenders, contrary to s 12 of the Canadian Charter, and that it could not be saved under s 1. Côté J dissented, arguing that the impact of the impugned provision on impecunious offenders does not rise to the level of “cruel and unusual”, and that while disproportionate, it accords with the principles of fundamental justice.
I argue that the dissent was correct, to the extent that the finding of a s 12 violation was inappropriate, though I dispute the suitability of the established s 12 test. Instead, the majority should have awarded remedy on the basis of a s 7 violation, as s 12 should be understood as addressing a fundamentally different evil from that in the present case.
see R v Boudreault, 2018 SCC 58 at para 114 [Boudreault].