Court of Appeal for Ontario

Date: June 30, 2017

Docket: C62360

Judges: Rouleau, van Rensburg and Pardu JJ.A.

Parties

Between

Her Majesty the Queen Appellant

and

Cesare Fedele Respondent

Counsel

Katherine Beaudoin, for the appellant

Scott C. Hutchison and Lauren Binhammer, for the respondent

Hearing

Heard: March 15, 2017

On appeal from: The judgment of Justice Thomas J. Carey of the Superior Court of Justice, dated June 9, 2016, affirming the judgment of Justice Micheline A. Rawlins of the Ontario Court of Justice, dated September 9, 2015.

Decision

Rouleau J.A.:

A. Overview

[1] This appeal raises a single question: Do sentencing judges have the discretion to impose concurrent victim surcharges or, put another way, can sentencing judges impose a single victim surcharge that is to serve as the mandatory victim surcharge for more than one offence? For the reasons that follow, I have concluded that victim surcharges are imposed automatically upon conviction or discharge for each offence and there is no discretion in the court to circumvent this automatic imposition by ordering concurrent victim surcharges.

B. Facts

[2] On two separate occasions six months apart, the respondent, Cesare Fedele, stole half a wheel of cheese and a pack of razor blades. He pleaded guilty to two counts of theft under $5,000.

[3] A pre-sentence report revealed that Fedele is supported by Ontario Disability Support Program benefits and has a history of substance abuse. Fedele was sentenced to five days in jail on each count, to be served concurrently, and 18 months' probation. The sentencing judge ordered that the victim surcharge of $100 on each count would be concurrent. In other words, one payment of $100 would cover two $100 surcharges.

[4] The Crown's appeal to the Superior Court of Justice as to whether a sentencing judge could order that the victim surcharges be concurrent was dismissed. The Crown now seeks leave to appeal to this court and, if leave is granted, appeals the decision to impose concurrent surcharges.

C. Analysis

Leave to Appeal

[5] The parties submit, and I agree, that leave to appeal should be granted. Whether sentencing judges have the discretion to impose concurrent victim surcharges is a question that has significance to the administration of justice beyond this case and the appeal is clearly arguable. See R. v. R.R., 2008 ONCA 497, at para. 32.

Merits of the Appeal

(1) Positions of the Parties

[6] In the courts below the judges reasoned that, applying the general principles of sentencing, if upon conviction for various offences concurrent sentences of incarceration could be imposed, the orders ancillary to the sentence for those convictions, such as the imposition of a victim surcharge, could also be made concurrent. This would appropriately reflect the totality principle and a reading of the Criminal Code most favourable to the offender: see R. v. McIntosh, [1995] 1 S.C.R. 686.

[7] The summary conviction appeal judge further held that this interpretation was not precluded by the existing case law holding that fines cannot be made concurrent: R. v. Ward (1980), 56 C.C.C. (2d) 15 (Ont. C.A.); Ontario (Ministry of Labour) v. Flex-N-Gate Canada Co., 2014 ONCA 53, 119 O.R. (3d) 1. In any event, as noted by the respondent, these cases rest on the decision in R. v. Derdarian et al., [1966] 1 C.C.C. 271 (Ont. H.C.) where the court simply concluded that concurrent fines are not permitted but did so without providing a rationale or authority for its conclusion.

[8] The summary conviction appeal judge viewed the victim surcharge as being similar to driving and weapons prohibition orders that are routinely made concurrent, or like DNA orders, where one order will suffice even where there are multiple convictions.

[9] On appeal, the respondent maintains that there is no reason for this court to intervene. The summary conviction appeal court's interpretation of s. 737 of the Criminal Code is consistent with its ordinary meaning. Section 737 requires that an offender who is convicted or discharged pay a surcharge. The section is silent as to whether surcharges can be imposed consecutively or concurrently. An offender who pays concurrent surcharges for two offences will pay a surcharge in respect of each offence. It is simply that the one payment acquits two separate obligations. This is no different from an offender who serves concurrent sentences. The offender is taken to have served the sentence in respect of each of the offences for which concurrent sentences were imposed.

[10] Further, in the respondent's view, the purpose of the surcharge is not undermined by providing that they can be imposed concurrently. This interpretation enhances judges' discretion to fashion sentences that are fit, taking into account the circumstances of the offender and of the offences.

[11] Section 737 provides that the victim surcharge is "in addition to any other punishment", suggesting that Parliament considered the surcharges to be a form of punishment. They are imposed to further the sentencing objectives of providing reparation for harm done to victims and the community and promoting a sense of responsibility in offenders and acknowledgment of the harm done. The sentence, however, must also be proportionate and reflect the totality principle. In the respondent's submission, therefore, all of these purposes and sentencing objectives are furthered by the imposition of concurrent surcharges in appropriate cases.

[12] For its part, the appellant argues that the words of the statute and the intent of Parliament are clear and must be followed. It argues that there is no express or implied jurisdiction to make victim surcharges concurrent. A proper interpretation of s. 737 requires that a victim surcharge must be paid for each offence and the court does not have the discretion to circumvent the proper application of the section.

(2) Analysis of the Legislation

[13] For the reasons that follow, the legislative text and legislative history of s. 737 make it clear that victim surcharges are to be imposed for each and every offence and as is the case with fines, there is no judicial discretion in a court to impose victim surcharges concurrently.

[14] Section 737 provides as follows:

Victim surcharge

737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.

Amount of surcharge

(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is (a) 30 per cent of any fine that is imposed on the offender for the offence; or (b) if no fine is imposed on the offender for the offence, (i) $100 in the case of an offence punishable by summary conviction, and (ii) $200 in the case of an offence punishable by indictment.

Increase in surcharge

(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.

Time for payment

(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.

Amounts applied to aid victims

(7) A victim surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.

Notice

(8) The court shall cause to be given to the offender a written notice setting out (a) the amount of the victim surcharge; (b) the manner in which the victim surcharge is to be paid; (c) the time by which the victim surcharge must be paid; and (d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.

Enforcement

(9) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular, (a) a reference in any of those provisions to "fine", other than in subsection 734.8(5), must be read as if it were a reference to "victim surcharge"; and (b) the notice provided under subsection (8) is deemed to be an order made under section 734.1.

[15] When considering the proper interpretation of a statute, "the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, 405 D.L.R. (4th) 393, at para. 21.

(a) The Purpose of the Legislation

[16] I turn first to the purpose or objective of the victim surcharge.

[17] The legislative intent of the victim surcharge regime was thoroughly canvassed by the Quebec Court of Appeal in R. v. Cloud, 2016 QCCA 567, 340 C.C.C. (3d) 547, and by this court in the decision released concurrently with this: R. v. Tinker, 2017 ONCA 552, at paras. 86-96. Both courts conclude that the surcharge regime has two objectives: (i) to provide funds for victim services and (ii) to increase offenders' accountability to victims and the community. The decision of the Supreme Court of Nova Scotia, Appellate Division in R. v. Crowell (1992), 115 N.S.R. (2d) 355, cited in Cloud, describes the surcharge as "a unique penalty in the nature of a general kind of restitution".

[18] Ordering concurrent surcharges would achieve the objective of making offenders accountable, but to a lesser degree, given the lower amounts imposed. It would clearly reduce the provision of funds for victim services. I am of the view, therefore, that the intent and objective of the legislature somewhat favour an interpretation which does not permit concurrent surcharges.

(b) The Legislative History

[19] The legislative history of s. 737 provides considerably more assistance in coming to a proper interpretation of the victim surcharge provision and, in particular, whether a court can impose victim surcharges concurrently as was done by the sentencing judge.

[20] Section 737 originates in the victim fine surcharge provision created by s. 655.9 of the Criminal Code in 1989: S.C. 1988, c. 30, s. 6, consolidated in R.S.C. 1985, c. 23 (4th Supp.), s. 6. That section provided that where an offender is convicted or discharged, "the court imposing sentence on or discharging the offender shall, in addition to any other punishment imposed on the offender, order the offender to pay a victim fine surcharge". The amount at that time was 15% of any fine imposed or, where no fine was imposed, $10,000, or a lesser amount as calculated in accord with the regulations. The maximum surcharge was fixed by regulations as $35, where no fine was imposed: SOR/89-366. Judges had discretion not to make the order imposing the surcharge. If, however, the judge declined to make the order, the statute provided that reasons were required.

[21] Major changes were made to the section in 1999: S.C. 1999, c. 25, s. 20. Specifically, the language of s. 737(1) was changed to the language that now appears in that provision. It now provides that the fine is imposed by the statute rather than ordered by the court. This is apparent from the words of the section: "an offender who is convicted or discharged … shall pay a victim surcharge, in addition to any other punishment imposed on the offender" (emphasis added). The section no longer provided that the court is to order the offender to pay a surcharge. As the surcharge was imposed by statute, the court could no longer decline to order its imposition, but was given the power to make an order exempting the offender from payment. Once again, reasons were required to be given if an order exempting the offender was made.

[22] Other changes were made, such as eliminating the $10,000 maximum and providing that, if no fine was imposed, the surcharge was fixed at $50 for a summary conviction offence and $100 for an offence punishable by indictment. The payment was now labelled as the "victim surcharge" rather than the "victim fine surcharge".

[23] The next change to the surcharge regime was in 2013: S.C. 2013, c. 11, s. 3. The amount of the surcharge was doubled and the power to exempt offenders from the surcharge was revoked, along with the requirement to give reasons in such cases.

[24] Three features of this history stand out as relevant to the question at issue. First, the change in 1999 from "the court shall order" to "the offender shall pay" suggests that the imposition of the victim surcharge is intended to be automatic and not subject to the discretion ordinarily afforded to the sentencing judge. In other words, the surcharge is a direct consequence of each conviction or discharge. An order of the judge is not required.

[25] The second relevant change is one made in 2013. The power that existed up to that date to exempt offenders from the surcharge was removed, along with the requirement to give reasons where an exemption was ordered. Previously, if the court exercised its discretion to exempt an offender from paying the surcharge, the court had to give reasons for doing so. It stands to reason that if, despite having removed the statutory power to exempt an offender from paying all of the victim surcharges imposed by operation of the section, Parliament had intended to leave sentencing judges with a residual discretion to order concurrent surcharges, relieving the offender from the requirement of paying multiple surcharges, Parliament would have retained the obligation to give reasons for exercising their discretion in that way. The lack of a requirement to give reasons suggests, therefore, that judges do not retain discretion to relieve offenders of the requirement to pay all of the surcharges imposed by the section.

[26] The third change that stands out is with respect to the right of appeal from the imposition of the victim surcharge.

[27] The Criminal Code provides that, if leave is granted, an offender has the right to appeal against sentence in proceedings by indictment, unless the sentence is one fixed by law: s. 675(1)(b). Similarly, if leave is granted, the Crown may appeal against the sentence passed in proceedings by indictment, unless the sentence is one fixed by law: s. 676(1)(d). For the purposes of determining what is encompassed in these appeal rights, s. 673 broadens the ordinary meaning of the term "sentence" to include certain listed orders: R. v. Chaisson, [1995] 2 S.C.R. 1118.

[28] When the surcharge was first created, the definition of "sentence" in the precursor of s. 673 was amended to include an order imposing a surcharge: S.C. 1988, c. 30, s. 4. When the 1999 amendments were adopted, making the imposition of the surcharge automatic, the statutory definition of "sentence" was changed to include an order increasing the surcharge from the minimums provided in the statute (s. 737(3)) or an order exempting the offender from the surcharge (s. 737(5)): S.C. 1999, c. 25, s. 13.

[29] When s. 737(5) was removed in 2013, the reference to it was removed from the definition of "sentence": S.C. 2013, c. 11, s. 2. As a result, the only possible appeal from the victim surcharge provisions that remains is an appeal from an order increasing the amount of the victim surcharge.

[30] It is clear from this history that rights of appeal were attached to the substantive discretionary decisions available to a sentencing judge, that is, whether to order an increased surcharge amount and whether to waive the surcharge. The lack of a right to appeal in the present legislation, except where an increased amount is ordered, is a further indication that sentencing judges do not have the discretion to order that the surcharge be concurrent since such an order would, in effect, be an order reducing the amount of the victim surcharge imposed.

(3) The Power to Impose Concurrent or Consecutive Sentences

[31] Although the legislative history strongly supports the Crown's submission to the effect that the victim surcharge is meant to be imposed for each and every offence, the respondent argues that nothing in s. 737 or the legislative history specifically addresses or removes the discretion judges otherwise have to make a sentence concurrent. In the absence of a constraint being imposed, the respondent maintains that judges are left free to make the payment of the victim surcharge concurrent, should this be viewed as constituting the most appropriate and fit sentence. Absent prohibition, the discretion remains.

[32] While it is true that s. 737 does not remove the discretion to impose victim surcharges concurrently or consecutively, this misses the point. The proper question to ask is whether such a discretion exists. In my view, it does not.

[33] First, as explained earlier, the wording of the section and the legislative history make it clear that Parliament intended the victim surcharge to be imposed for each and every offence, leaving the judge with no discretion in its imposition. Moreover, the proposition that victim surcharges can be imposed concurrently is not consistent with the jurisprudence, nor is it a logical extension of the concept of concurrent and consecutive sentences.

[34] Concurrent and consecutive are concepts that apply to periods of time. There can be concurrent sentences of incarceration or concurrent prohibitions on driving. Fines and surcharges are not punishments which are measured in time – they are measured in amounts of money.

[35] The concept of concurrent sentences is expressed in s. 719(1), which provides that "[a] sentence commences when it is imposed, except where a relevant enactment otherwise provides." By providing that a sentence "commences", s. 719(1) clearly contemplates a sentence which takes up a certain period of time, not a sentence like a fine or restitution.

[36] Section 718.3(4), which sets out conditions under which sentences may be made consecutive, is even clearer. It provides that a court can direct that the "term of imprisonment" that it imposes be served consecutively. Taken together, these provisions suggest that the concepts of concurrent and consecutive sentences do not apply to monetary penalties.

[37] This view was confirmed in Ward. Martin J.A., writing for the court, stated as follows:

We observe, firstly, that there is no authority to impose a concurrent fine as the learned trial judge did, in respect of separate offences: see R. v. Derdarin et al., [1966] 1 C.C.C. 271. Where it is appropriate to impose a fine, either in lieu of or in addition to, a custodial sentence, a separate fine must be imposed on each count in respect of which it is intended to impose a fine taking care, of course, that the total amount of the fines does not exceed what is appropriate.

[38] This interpretation was confirmed in Flex-N-Gate, where the court applied the same principle to fines under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, and in R. v. Leo-Mensah, 2010 ONCA 139, 101 O.R. (3d) 366, where the principle was applied to fines under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1.

[39] I acknowledge that there is little substantive analysis of the issue in these cases. The analysis is limited, in my view, because courts have taken the proposition to be straightforward.

D. Conclusion

[40] I conclude that the Criminal Code does not allow for concurrent victim surcharges. As a result, a sentence that provides for "concurrent" victim surcharges is not one that can lawfully be imposed.

[41] I would, therefore, grant leave to appeal, allow the appeal, set aside the order of the summary conviction appeal court and vary the sentence imposed at trial to impose the victim surcharge for both counts.

"Paul Rouleau J.A."

"I agree K. van Rensburg J.A."

"I agree G. Pardu J.A."

Released: June 30, 2017

Footnotes

[1] A minor change to s. 737(1) was made in 2013, when the imposition of the surcharge was no longer made "subject to" s. 737(5).

[2] I would note that Parliament is considering amendments to s. 737: Bill C-28, An Act to amend the Criminal Code (victim surcharge), 1st Sess., 42nd Parl., 2016.