Allen / McMillan at the Supreme Court of Canada – R v Boudreault

On December 14, the Supreme Court of Canada released R v Boudreault, a landmark decision in the area of mandatory victim surcharges. Victim surcharges are fines imposed on offenders which are used to fund victim services. The Criminal Code does not permit a judge any discretion to waive or reduce the surcharge, and surcharges are imposed on each count, often resulting in offenders receiving thousands of dollars in surcharges. Offenders who cannot pay are at risk of further incarceration. 

In R v Boudreault, Greg Allen appeared as counsel on behalf of the British Columbia Civil Liberties Association, and argued that mandatory victim surcharges are unconstitutional as a violation of the protection against cruel and unusual punishment. The Supreme Court of Canada held that mandatory victim surcharges are, in fact, unconstitutional on this basis, and cannot be justified as a reasonable limitation of this right. As a result, the Court declared that the section of the Criminal Code requiring judges to impose victim surcharges on offenders is invalid.

For more information on Allen / McMillan’s appellate advocacy and advisory practice, call us at (604) 569-2652 or email info@amlc.ca.

Wes McMillan Successfully Protects Real Estate Licensee

Wes was recently successful in protecting a real estate licensee from a procedurally unfair attempt by the Superintendent of Real Estate to force the licensee into a discipline hearing after the Real Estate Council had closed a complaint against the licensee without a hearing and without disciplining the licensee.

In early 2018, the Superintendent of Real Estate had made news when he directed the Real Estate Council to issue a notice of discipline hearing to Wes’ client and then sued the Real Estate Council for refusing to issue the notice of discipline hearing after it had closed the complaint file.

The Superintendent purported to exercise new powers that were provided to him in a recent regulatory overhaul of the real estate industry. The Real Estate Council refused to follow the Superintendent’s directive on the basis that it had already decided the matter (in legal parlance, it was functus officio).

The Superintendent sued Real Estate Council without bothering to make the licensee a party to the lawsuit. Wes ensured the licensee was made a party to the proceeding and had an opportunity to put his own position before the court.

The court rejected the Real Estate Council’s position that it was functus officio. However, the court agreed with Wes that the Superintendent’s process (or lack thereof) was flawed and unfair and, as a result, refused to order that the Real Estate Council follow the Superintendent’s directive.

This case is important in that it ensures the Superintendent is held in check in the exercise of his new powers and reminds the Superintendent and others with similar powers that regulatory authority must be exercised in a manner that is fair to those who are regulated.

Superintendent of Real Estate v. Real Estate Council of B.C., 2018 BCSC 1500