The Nanaimo Three - Political Prisoners in Canada

[Fmotlgroupie]

I'm wondering, ... Is it possible to be a privately contracted "peace officer"?

In concept, I'd say yes. In reality, I don't think they should be called "peace officers".

Well, how about the Canadian Pacific Police Service?

I would love to see Mr. Menard try to put that one to work.

An excellent example, and a rather weird situation. I've got a few minor points which I thought I'd add, since, well, that's the sort of pedant that I am. Railway Police (why can't the law call them Bulls like the old folk songs do?) are if course creations of a statute ( http://laws-lois.justice.gc.ca/eng/acts ... .html#h-37 , section 44.1 if it doesn't jump to there), rather than being simply created by contract, as Menaed night try to twist your phrasing. And while the railroad company pays the constables, and can fire them, they can only be appointed by a judge of a superior court, so that they are still hired by "the authorities", even if it goes private-sector from there. Maybe Bobby could try to get a judge to appoint him as a peace officer (I'd pay to see that hearing)

[grixit]

What's the least responsible job you can have in the justice system and still be classified as an "officer of the court"? Maybe they can start there and try to stretch it.

[notorial dissent]

The difference, is that the CCPS really are a duly chartered, by Federal statute, police entity, admittedly, a very special entity, but still an actual police force. I think this is what Bobby was shooting for in his usual half assed way, except, thankfully, he can't jsut wish them in to existence, but I just don't see the Canadian Parliament chartering the C3PO's with bobby at their helm. I just can't imagine what they'd all have to be smoking to do that.

[rogfulton]

I just can't imagine what they'd all have to be smoking to do that.

Or that there would be enough.

[notorial dissent]

Yeah, that too, and it would have to be awfully good in the bargain.

[arayder]

Slowly but surely the fantasy that the freeman cult can make its own law, institute its own courts, create its own police force and make its own sort of money is blowing away in the wind.

Likewise the dream that freemanary can do all this to the exclusion of existing constitutionally institutued law, courts, police and banking institutions is being shattered.

As we see in the cases of Dean Clifford (who goes to court today), Robert Menard (who sees the judge on Feb. 9th) the brain trust of the freeman subculture simply lacks the ability control themselves let along mount any sort of freeman revolution.

Freemanary is also hindered by the fact that its "movement" does not offer a mature plan for economic growth, financial security or the maintenance of basic freedoms.

It's one thing to play freeman activist at traffic stops and quite another to monitor the RCMP.

It's one thing to endlessly opine about banking practices and quite another to help provide security for the family freemen leave behind to partake in their basement weed parties.

It's one thing to promise the abundance of Canada's wealth to freemen and quite another to make good on the promise.

But, the worst problem freemanary suffers is the lying of its leader/gurus and the self-delusion of duped followers. Whether it's Keith Thompson pretending he ruled the traffic court that ended up fining him anyway, or Menard and Clifford pretending they dismissed the cops and the courts with a waive of their hands. . .the outright deception of freemanary belies the "movement's" cries that it has found the truth.

Freemanism is a lie told by liars to the gullible.

Sadly, the freeman movement has degenerated into a failed fantasy pitched by drug and alcohol addled and rage disorder losers.

[Burnaby49]

Didn't make it to court, sorry. Actually, to be accurate, I made it to the court but didn't make it into the court. I was standing outside the door of courtroom 206 but I couldn't go in because I was in violation of the dress code of the Provincial Court of British Columbia by wearing a demure pair of just above the knee denim shorts. Who knew? It was exactly the same outfit I wear to the Tax Court of Canada and the Federal Court all the time and they don't care, but rules are rules.

. . . . . . . . .

Above is my August 14, 2013 posting on "The Nanaimo Three - Political Prisoners in Canada" discussion, the first time I tried to do a Quatloos court report. The ridicule I received as a result of that post! The shame and humiliation! I almost slunk away in defeat. But I find I'm not alone! This is the pre-trial checklist from a lawyer who just represented a client before the California Supreme Court;




A wiser man than me. When I attended Bernard Yankson's hearing three months later I put that lesson to use.

http://www.loweringthebar.net/2015/03/s ... eport.html

[Burnaby49]

Is the dream dying? From David Lange's Facebook page;

Dave Lange
May 8 · Surrey ·
.does anyone know how to close a face book account. I have been on here for so long but bill c-51 has got me worried. Not that it applies to us but people with uniforms and guns believe it does so it does have me more than a little worried. If anyone knows the process, please share. Thanx

He's told to buck up and face the evil government but he demurs;

Lee Carver Fairley
They already have yer info man, get yer panties out of a bunch and buck up. There's more of us than them.......................

Dave Lange
agreed Lee, it's the monopoly on force and violence that I am not up for any more. Almost lost everything already.

Can't argue that. I said in an October 25, 2013 posting in this discussion

I listened to the program. To be fair I was reading the on-line Wall Street Journal at the same time too so I had only half an ear. About the most pathetic thing I've ever heard. Just sad. Lange is foreclosed, out on the street, befuddled about what to do next but, as Mowe suggests, still very much a true believer. He is struggling to find the magic words, the secret, whatever it takes, to reverse everything and get his home back. Well, apart from getting a job and paying his mortgage. That is right off the table because there were staple holes in the document so the whole thing is fraud. However he is somewhat constrained in his alternatives by things like bail conditions, stuff in storage, no idea what to try, the usual problems of a man following his convictions rather than common sense. No enthusiasm in his voice at all. Just a man who followed a path and now sees no other alternatives.

And our now lamentably lost poster Hilfskreuzer Möwe said;

But all that aside, it seems that David Lange has now lost two homes to foreclosure because of his Freemanish antics. He's a doofus, but I find it painful to watch even doofii mangle themselves on financial and legal apparatus because they have been indoctrinated in Freeman/Sovereign drivel. Lange indicates that in each case the foreclosures were clever schemes where he was either detained by police or tempted into another location for a court appearance, and that allowed the Forces of Darkness to swoop in and expel the Lange household.

Additionally Lange has his criminal conviction for impersonating a peace officer. In sum a high price to pay for dreams that had no chance of being realized.

Note that Lange posted this before the Raddatz shooting;

viewtopic.php?f=48&t=10621

I assume that with the massive negative publicity that the freemen have had from this incident, and the greatly increased attention they are certain to get from police and the courts, that more freeman followers are going to decide it is time to jump ship.

I would dispute one statement;

Lee Carver Fairley
. . . . . . . . There's more of us than them.......................

The vast majority of the Canadian public despises the freemen as freeloading self-entitled troublemakers who demand all the benefits of being in Canada while contributing nothing. Ninja, before you post, I know that is not how you live you but you are an odd man out.

[Burnaby49]

Back when I was reporting the Nanaimo three trial in this discussion the topic of the mandatory victim's surcharge came up. This is a fine automatically imposed on miscreants when convicted of a criminal offense. It supposedly goes into a fund that is used to help crime victims in general. I said in my reporting that the guy I saw convicted of breaking into cars had about as much chance of paying it as he had to fly to the moon. This generated a considerable discussion about the charge and it's effectiveness. The discussion started about here;

viewtopic.php?f=48&t=9388&start=400#p167790

The Provincial Court of British Columbia has just released a decision which found the surcharge to be unconstitutional.

R. v. Barinecutt, 2015 BCPC 189
http://canlii.ca/t/gjrwb

Bruce Barinecutt is a life-long criminal and a total loser. He has over 60 prior convictions for various criminal offenses and is currently getting disability benefits. His current conviction is for breaching a restraining order in respect to an assualt allegation. The judge said it is unlikely he would ever be able to pay the surcharge.

Some excerpts from the decision, first a review of the surcharge;

LEGISLATIVE HISTORY AND ENFORCEMENT

[7] A victim fine surcharge was first introduced in 1989 and applied as a percentage of fines and (by regulation) a minimum flat fee in non-fine cases. If an offender established undue hardship the surcharge could be waived (An Act to Amend the Criminal Code (Victims of Crime), R.S.C. 1985 c. 23 (4th Supp.) s. 6; Victim Fine Surcharge Regulations, SOR/89-366 s. 2).

[8] In 1999 the victim fine surcharge provisions were amended so the surcharge applied to all convictions no matter the type of sentence imposed. If a fine were imposed the surcharge was still 15 percent, but if no fine was imposed the victim fine surcharge was $50 for summary conviction offences and $100 for offences proceeded with by way of indictment (and a judge could order a higher amount). Still, the victim fine surcharge could be waived if an offender established undue hardship.

[9] The amendments which came into effect on October 24, 2013, changed the name of the provision in s. 737 of the Criminal Code from “victim fine surcharge” to “victim surcharge”, increased the amount payable to $100 for summary conviction offences and $200 for indictable offences, or 30 percent of any fine imposed. There is no longer an exemption for undue hardship. The victim surcharge applies to all offences and to all offenders. It also applies when discharges are granted. A fine option program, where available, was extended to apply to the victim surcharge. Mr. Barinecutt cannot extinguish a victim surcharge levy by community service in a fine option program because such a program does not exist in British Columbia.

Then the defendants past history;

[26] The Pre-Sentence Report establishes that at the time of these offences, Mr. Barinecutt was 32. He was born in Surrey, B.C. and was placed into the care of the Ministry of Children and Family Development immediately following his birth. His mother misused drugs and alcohol during her pregnancy. His childhood was unstable as he was placed in numerous foster homes. He was physically abused while growing up and sexually assaulted by a babysitter.

[27] His criminal record begins at age 19. Shortly thereafter, he moved to Calgary where he lived for three years. He has been without a fixed address since returning to British Columbia. His goal is to secure stable housing.

[28] Mr Barinecutt is HIV and Hepatitis C positive. He suffered a lower lumbar injury as a result of being shot in 2002. According to the British Columbia Community Corrections files he has below average cognitive ability and is just above the criteria for being developmentally delayed. He was diagnosed with Attention Deficit Disorder, Fetal Alcohol Effect [sic] and Fetal Alcohol Spectrum Disorder. Reports of ongoing substance misuse are contradictory: Mr. Barinecutt says he last used illicit substances in January of 2014, that he quit of his own accord at age 30, and that he is on the methadone maintenance program. His primary physician reports that she has not been able to assess Mr. Barinecutt for any mental health diagnosis because of his on-going substance misuse. Mr. Barinecutt acknowledged to the pre-sentence report writer that most of his criminal history relates to his substance misuse.

[29] Mr. Barinecutt has approximately sixty previous convictions. The majority are property-related, and he has failed to comply with court orders. Since 2002, Mr. Barinecutt has received custodial time for most of his offences.

[30] Mr. Barinecutt advised the report writer that he completed grade 10 in 2000 and is motivated to complete his high school graduation requirements. He also told her that he obtained his welding ticket when he was twenty-one after attending Bow Valley College for three years. Among other jobs, he reported working in welding, construction, and as an automobile and motorcycle mechanic. He said he was employed by Ledcor Construction for five years until November 2013, and quit due to ongoing stress, being in and out of custody, and no longer wanting to be affiliated with gang associates. This information was not confirmed by the report writer.

[31] Mr. Barinecutt’s record for the time he reports being employed by Ledcor Construction reveals that he was in custody for most of 2008, had sentences totalling 96 days in 2009, seven months in 2010, 93 days in 2011 25 days in 2012 and 23 days in 2013.

[32] Mr. Barinecutt has been receiving persons with disability benefits since November 16, 2013. His file with the Ministry of Housing and Social Development has been sporadically open and closed since January 2001.

[33] Considering Mr. Barinecutt’s cognitive and developmental challenges, the extent of his high school education, his difficulties with illicit substances, his lack of housing, his failure to complete alcohol and drug interventions in the community and the time he has spent in custody, I find it extremely unlikely that he obtained his welding ticket as he reported, and that he was employed steadily by Ledcor Construction for five years. I think it more probable that he was trying to present himself in a favourable light to the report writer as he was in custody at the time and no doubt hoping for no further supervision or custodial time.

This led to;

[34] In Mr. Barinecutt’s circumstances I find that his right to security of the person is infringed by the mandatory victim surcharge. He is unable to pay it at present. Given his cognitive limitations, medical diagnosis and personal circumstances, namely, being homeless, he is unlikely to be able to pay it in the foreseeable future. Even if he could gather the resources to file an application to extend the time to pay the surcharge, that would still leave him in limbo with the debt remaining and unable to start the clock running on the waiting time required before he could apply for a record suspension. While economic interests are not protected by s. 7, the impact of an ongoing unpaid victim surcharge on Mr. Barinecutt is more than merely economic.

[35] This situation is not unlike the interference with a person’s security which is protected by the right to be tried within a reasonable time. The “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” which includes stigmatization, possible disruption of family, social life and work, and uncertainty as to outcome and sanction, apply to some degree to Mr. Barinecutt although he is not facing a possible criminal sanction. It is not a pre-condition to finding interference with a security interest that he be facing a criminal sanction: Mills v. The Queen 1986 CanLII 17 (SCC), [1986] 1S.C.R. 863 pp 919-20 as quoted in New Brunswick v. G (J), para 62.

[36] In considering s. 7, the Chief Justice said:

The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal. To deprive citizens of life, liberty or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice. (Canada (Attorney General)v. Bedford, para 105)

[37] If there is, as I have found, a deprivation of liberty or security of the person, the next step is to determine whether that deprivation has occurred in a manner consistent with the principles of fundamental justice, both in terms of process and the ends the deprivations seek to achieve, as measured against basic tenets of our judicial and legal system generally: Godbout v. Longueuil (City), para 74-76.

Which led to this conclusion;

Use of Proceeds of Victim Surcharge

[41] Money collected from victim fine surcharges goes into a special account of the consolidated revenue fund, the “Victim Surcharge Special Account”. Monies in that account are spent in accordance with the Victims of Crime Act, R.S.B.C. 1996 c. 478, and the Criminal Code, and are used to provide frontline services to victims of crime and for the processing of victim impact statements (Taryn Walsh Affidavit, sworn July 15, 2014).

Analysis

[42] Is there a direct connection between the purpose of the law and its effect on Mr. Barinecutt, in the sense that the effect on him bears some relation to the law’s purpose: Canada A.G. v. Bedford para 111? The effect of the victim surcharge on Mr. Barinecutt is to saddle him with a debt that he will likely never be able to pay. If collection measures are used to attach any tax refund he may be entitled to in the future, this will have an effect on him far greater than it would on a healthy, gainfully employed and reliably housed individual. Further, the administrative collection proceedings entail a cost to government, as would an application for a warrant of committal to enforce payment. The cost of these actions might be more properly applied to victim services. Because the waiting time before he can apply for a record suspension does not begin to run until the victim surcharge is paid, Mr. Barinecutt is effectively prevented from full rehabilitation and reintegration into society. I find there is no rational connection between these consequences and the object of increasing accountability to victims and ensuring consistent collection of funds for victims’ services. The arbitrary nature of the victim surcharge results in it having an effect on Mr. Barinecutt that is grossly disproportionate to the legislative goal.

[43] “Where the deprivation of the right in question does little or nothing to enhance the state’s interest….a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.” (Rodriguez v. British Columbia (Attorney General) p. 47 -8)

[44] Therefore, I find the victim surcharge infringes Mr. Barinecutt’s s. 7 Charter right to liberty.

[64] The purpose of the victim surcharge is to increase accountability of offenders. This is a valid sentencing purpose, being one of the enumerated factors on sentencing in s. 718 of the Criminal Code.

[65] However, the application of a mandatory punishment, or fine, has the potential to depart from the principle of proportionality as it does not allow for a review of all of the relevant factors so as to reach a proportionate result: Nur, para 44. The payment of a fixed amount for each of all summary and all indictable offences where a fine is not imposed would on its face offend the principle of proportionality in sentencing.

[66] Would Mr. Barinecutt be able to pay the surcharge within two months of its imposition? As stated in the analysis above, I think this unlikely. He has been receiving disability benefits since November, 2013. He does not have a home. While he reported completing a trades-based program, I am skeptical about the veracity of this reporting, as he did not finish high school and has a number of cognitive and physical challenges. He has a protracted criminal record. He has a problem with substance misuse. Therefore, he faces multiple barriers to establishing himself in a situation where he would have the financial and logistical wherewithal to pay the fine. Those same barriers would operate to make it improbable that he would have the personal resources to apply to the court to have the time to pay the surcharge extended. Even then the prospect of his being able to eventually make the payment is questionable.

[67] As British Columbia has no fine-option program, the only alternative to the surcharge is a term of imprisonment which may only be imposed, after a hearing, if the offender has no reasonable excuse for non-payment.

[68] If the province, then, followed through with the enforcement measure available to it, attaching any funds due to Mr. Barinecutt from the Canada Revenue Agency, it may from time to time garner some funds through a GST rebate or tax refund.

[69] The impact of the loss of these funds on Mr. Barinecutt is significantly different from the impact on an individual employed at a minimum wage job and who has a place to call home. If the comparison were extended to someone who has the ability to earn a greater income, the difference in the impact is extreme.

[70] I find, on a balance of probabilities, that Mr. Barinecutt would not be able to pay the victim surcharge within the time period prescribed by the regulations, nor would he likely be able to extinguish the debt at any time in the near future. The effect on him is well described in R. v. Michael:
…the point is that so long as [the offender] 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….If [the offender] cannot pay that victim surcharge because of his poverty, the effect is that he will be perpetually disqualified from applying for full reintegration and formal forgiveness….Simply put, [the offender] is being treated more harshly because of his poverty than someone who is wealthy. (para 75, 77, 87)

[71] Even if Mr Barinecutt were to rely on the Crown not to pursue him for payment, he still is constrained by the situation of not being able to apply for a record suspension. As long as the surcharge remains unpaid, the waiting time required before applying for a record suspension does not start to run. (Criminal Records Act R.S.C. 1985 c. C-47, s.4 (1); Parole Board of Canada “Record Suspension guide, Step-by-Step Instructions and Application Forms”). As a result, he may have to wait longer than an offender with an ability to pay which may reduce his prospects for employment.

[72] He cannot, on his own motion, apply to serve time in custody to extinguish the surcharge: R. v. Rowsell; R. v. Chausse; and if he did, it should properly be denied: R. v. Wu.

[73] I believe that a reasonable person, properly informed would find the imposition of a mandatory $200 surcharge on someone with Mr. Barinecutt’s personal characteristics, and in his circumstances to be grossly disproportionate.

[74] If I am wrong in his specific case, is it reasonably foreseeable that the mandatory imposition of a victim surcharge will impose a punishment that is grossly disproportionate to some offenders’ situations? In framing a reasonable hypothetical, one need only look to recent decisions which have considered the victim surcharge, for example: R. v. Flaro; R. v. Tinker; R. v. Michael; R. v. Cloud. A review of the characteristics of the offenders in those cases reveals that the imposition of a victim surcharge will impose grossly disproportionate sentences on offenders whose circumstances include mental health issues, homelessness, chronic unemployment, limited financial stability only through income assistance benefits, drug and/ or alcohol addiction, cognitive and developmental delays, and, impact directly or indirectly from native residential school programs and other circumstances which cause aboriginal offenders innumerable challenges.

[75] The surcharge is likewise grossly disproportionate when imposed in conjunction with an absolute discharge granted to the type of offender described above. The offender will not benefit from the discharge until the surcharge is paid. Until then, he will be burdened with a criminal record.

[76] An additional $200 penalty may be an appropriate and just sanction for many offenders, but the impact on Mr. Barinecutt or any like-situated offender is grossly disproportionate to the law.

[77] Finally, considering that I found the victim surcharge infringes Mr. Barinecutt’s s. 7 liberty interest, I note the following: where a principle of fundamental justice embedded in s. 7 gives rise to a constitutional remedy against a punishment, s. 12 would also be infringed: R. v. Malmo-Levine, para 160.

CONCLUSION

[78] In summary, I find Mr. Barinecutt has met the burden upon him on a balance of probabilities to establish that the victim surcharge infringes his s. 7 and s. 12 Charter rights.

[LaVidaRoja]

What weight will this carry outside of B.C.? And, can/will this finding be appealed?

[Fmotlgroupie]

What weight will this carry outside of B.C.? And, can/will this finding be appealed?

It's not even binding in BC. I don't know if the Crown will appeal (if the appeal loses then that decision will be binding).

Another decision with a different perspective on the relationship between the courts and the law recently came out of Ontario (again a provincial court decision):
http://canlii.ca/t/gh6pc

[Burnaby49]

What weight will this carry outside of B.C.? And, can/will this finding be appealed?

Since the victim surcharge is a federal offense this decision, if it stands, might have an impact across Canada. It will certainly have an impact in British Columbia but I don't know if the other provinces are required to abide by a British Columbia provincial court decision.

The Crown is free to appeal the decision if they wish. As to whether or not they will, no idea. I get the feeling that the surcharge is more of a bother than it is worth as far as the province is concerned. The money is trivial and there are a lot of time consuming squabbles in court about it. As the decision says;

[13] The Affidavit material filed by the Crown sets out the steps taken by the Province to collect victim surcharges. If a surcharge is not paid within 30 days of the due date, the Province’s Revenue Services begins collection. A series of letters are mailed to the offender if the surcharge remains unpaid. Once the final letter, a legal warning letter, is sent the debt is then registered with Canada Revenue Agency, which causes the debt to be paid out of any tax refund owed to the offender. The final step would be to pursue legal action to collect the debt, including registering it against an interest in land, or issuing a demand against wages or bank accounts. The Insurance Corporation of British Columbia may suspend or refuse to renew a driver’s licence where the offender’s victim surcharge is attached to a motor vehicle related Criminal Code offence (and other specified motor vehicle related offences). (Motor Vehicle Act R.S.B.C. 1996 c. 318 s. 26.)

A lot of bother for a few hundred bucks where, in many case, collection is problematic anyhow. So the province might not be motivated to appeal it, we'll see.

Keep in mind the above is just my ill-informed analysis. I'm not a lawyer and am not particularly familiar with the victim surcharge legislation.

[eric]

Back when I was reporting the Nanaimo three trial in this discussion the topic of the mandatory victim's surcharge came up. This is a fine automatically imposed on miscreants when convicted of a criminal offense. It supposedly goes into a fund that is used to help crime victims in general. I said in my reporting that the guy I saw convicted of breaking into cars had about as much chance of paying it as he had to fly to the moon. This generated a considerable discussion about the charge and it's effectiveness. The discussion started about here;

viewtopic.php?f=48&t=9388&start=400#p167790

The Provincial Court of British Columbia has just released a decision which found the surcharge to be unconstitutional.

R. v. Barinecutt, 2015 BCPC 189
http://canlii.ca/t/gjrwb

LEGISLATIVE HISTORY AND ENFORCEMENT

[71] Even if Mr Barinecutt were to rely on the Crown not to pursue him for payment, he still is constrained by the situation of not being able to apply for a record suspension. As long as the surcharge remains unpaid, the waiting time required before applying for a record suspension does not start to run. (Criminal Records Act R.S.C. 1985 c. C-47, s.4 (1); Parole Board of Canada “Record Suspension guide, Step-by-Step Instructions and Application Forms”). As a result, he may have to wait longer than an offender with an ability to pay which may reduce his prospects for employment.

I can see the court's decision being struck down as being just down right silly.
The learned judge bases his reasoning in part on the fact that the victim is unlikely to have the funds available to pay off the $200 victim surcharge and thus would have to wait too long to apply for a pardon. Obviously the judge never read the Parole Board of Canada “Record Suspension guide, Step-by-Step Instructions and Application Forms”. If he had read them in detail he would have noted that the minimum sum the applicant has to come up with is $631 processing fee and $25 for the fingerprint kit. Here in the real world, somehow the logic escapes me - if he can't pay $200 it is even more unlikely that he will ever pay the $656.

[Fmotlgroupie]

Back when I was reporting the Nanaimo three trial in this discussion the topic of the mandatory victim's surcharge came up. This is a fine automatically imposed on miscreants when convicted of a criminal offense. It supposedly goes into a fund that is used to help crime victims in general. I said in my reporting that the guy I saw convicted of breaking into cars had about as much chance of paying it as he had to fly to the moon. This generated a considerable discussion about the charge and it's effectiveness. The discussion started about here;

viewtopic.php?f=48&t=9388&start=400#p167790

The Provincial Court of British Columbia has just released a decision which found the surcharge to be unconstitutional.

R. v. Barinecutt, 2015 BCPC 189
http://canlii.ca/t/gjrwb

LEGISLATIVE HISTORY AND ENFORCEMENT

[71] Even if Mr Barinecutt were to rely on the Crown not to pursue him for payment, he still is constrained by the situation of not being able to apply for a record suspension. As long as the surcharge remains unpaid, the waiting time required before applying for a record suspension does not start to run. (Criminal Records Act R.S.C. 1985 c. C-47, s.4 (1); Parole Board of Canada “Record Suspension guide, Step-by-Step Instructions and Application Forms”). As a result, he may have to wait longer than an offender with an ability to pay which may reduce his prospects for employment.

I can see the court's decision being struck down as being just down right silly.
The learned judge bases his reasoning in part on the fact that the victim is unlikely to have the funds available to pay off the $200 victim surcharge and thus would have to wait too long to apply for a pardon. Obviously the judge never read the Parole Board of Canada “Record Suspension guide, Step-by-Step Instructions and Application Forms”. If he had read them in detail he would have noted that the minimum sum the applicant has to come up with is $631 processing fee and $25 for the fingerprint kit. Here in the real world, somehow the logic escapes me - if he can't pay $200 it is even more unlikely that he will ever pay the $656.

One can agree or disagree with the BC judge's decision but there is a lot of feeling in the legal community that the $100 surcharge is unspeakable tyranny, so the judge can't be seen as an outlier, though I agree with you in asking "what are they talking about?"

[Burnaby49]

It can't be just "struck down" regardless of your opinion, or mine, on the correctness of the decision. The decision stands unless overturned on appeal.

A question for Fmotlgroupie. You said;

It's not even binding in BC. I don't know if the Crown will appeal (if the appeal loses then that decision will be binding).

Why is it "not even binding in BC."? I assume that unless it is overturned on appeal it is a valid decision the same as any other British Columbia Provincial Court decision. Why does it need the validation of an unsuccessful appeal to become precedence?

[Jeffrey]

The decision is that:

I find the victim surcharge infringes Mr. Barinecutt’s s. 7 Charter right to liberty.

Charter applies in all the provinces, so I would guess you'd be safe bringing this as case law into other provinces because the reasoning applies there as well.

[eric]

Another decision with a different perspective on the relationship between the courts and the law recently came out of Ontario (again a provincial court decision):
http://canlii.ca/t/gh6pc

Thanks for the reference, it made a good read. I particularly liked the reasoning regarding surcharges limiting the offender's chances of renewing permits and licenses. Amongst some of my acquaintances, the well oiled provincial mechanism of applying fines and surcharges towards the renewal charges is viewed as an interest free loan or as a way of "getting back at the man" by delaying payment until it is convenient for you.

[Fmotlgroupie]

It can't be just "struck down" regardless of your opinion, or mine, on the correctness of the decision. The decision stands unless overturned on appeal.

A question for Fmotlgroupie. You said;

It's not even binding in BC. I don't know if the Crown will appeal (if the appeal loses then that decision will be binding).

Why is it "not even binding in BC."? I assume that unless it is overturned on appeal it is a valid decision the same as any other British Columbia Provincial Court decision. Why does it need the validation of an unsuccessful appeal to become precedence?

It's exactly as binding as any other provincial court judgement: not at all. (IANAL so I'm open to correction) judges are bound only by the decisions of higher courts (e.g. superior courts sitting as summary conviction appeal courts, or Courts of Appeal). Provincial court judgements, being at the bottom of the totem pole, may be persuasive (IIRC the standard of when a person is drunk enough to be arrested for being drunk in public is a very old Alberta provincial court ruling), but aren't binding on other judges. (This is good because as a senior lawyer once told me, provincial courts can make some crazy rulings).

If this ruling is appealed it will be considered by the BC Supreme Court (not what it sounds like) and that (superior court)judge's ruling, whether "its constitutional" or "it's not constitutional" would be binding on (provincial?? All? Can a lawyer help me out?) BC courts unless overruled by a higher court.

[Burnaby49]

As I understand the rule only the decisions of lower courts don't stand as precedence, not decisions of the the same court, so the B.C, Provincial Court is bound by its own prior decisions. The Tax Court of Canada fequently uses prior Tax Court decisions as a basis for deciding new cases as does the Federal Court of Canada. Here's an example from the B.C Supreme Court citing its own prior decisions in the Bernie Yankson judgment;

[7] An application under Rule 9-5 is distinct from applications under Rule 9-6 which are concerned with the merits of claims and for which evidence is admissible. The test on application under Rule 9-5(1)(a) is whether it is plain and obvious that the pleadings disclose no cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69. It is a test with a high threshold; after all, the effect of striking pleadings in whole, is to dismiss the plaintiff’s claim: see Woolsey v. Dawson Creek (City), 2011 BCSC 751 at paras. 27-30.

[8] Another ground which will found an application to strike pleadings is where the matter is an abuse of process, which violates principles such as “judicial economy, consistency, finality and the integrity of the administration of justice”: Dempsey v. Envision Credit Union, 2006 BCSC 750 at paras. 9 and 12.

[22] I am cognizant that the power to order that a person must seek leave before becoming a litigant is a drastic measure that should be exercised with caution: see Koyama v. Leigh, 2001 BCSC 164. That said, I am satisfied that the plaintiff has been shown to be a vexatious litigant, and that any future proceedings should only be instituted by him upon further order of this court. The plaintiff then, is declared a vexatious litigant.

viewtopic.php?f=48&t=9597&hilit=yankson ... 40#p164660

[Fmotlgroupie]

As a good little legal amateur I've done a quick CANLII browse and from what (little) I can tell it looks like the issue of how bound judges are by their direct peers is shockingly open to debate. http://canlii.ca/t/24673 (From the Manitoba Provincial Court) seemed to be the best discussion of the various approaches I could find in 15 minutes or less. (Spoiler: this judges ruled he should follow a peer's decision unless there is a compelling reason otherwise. I have no idea how binding this is on other judges )