Court File and Parties
COURT FILE NO.: CR-15-3490-AP DATE: 2016-06-09 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Appellant – and – Cesare Fedele Respondent
Counsel: Scott Pratt, for the Appellant Crown Maria Carroccia, for the Respondent
HEARD: March 10, 2016
Carey J.:
Overview
[1] When victim surcharges were first introduced into the Criminal Code, R.S.C. 1985, c. C-46, they were called victim fine surcharges and were discretionary. It was not unusual for the surcharges to be waived by the sentencing judge, particularly when dealing with the poor, the unemployed and those on disability.
[2] Changes were made to the victim surcharge provisions over the last decade as part of the government’s “tough on crime” initiatives. The discretion afforded trial judges, regarding victim surcharges, was removed from s. 737; furthermore, the amount of any surcharge was raised. As was the case with a number of the past government’s sentencing initiatives, the renamed victim surcharge legislation became the subject of multiple Charter challenges. In a 2013 ruling from Paciocco J. in the Ontario Court of Justice, the legislation was found to be in breach of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, C. 11. That decision was not appealed.
[3] The following year in 2014, Glass J. in the Superior Court of Justice of Ontario found the legislation not to violate the Charter. That decision was binding on the Ontario Court of Justice.
[4] The constitutionality of the victim surcharge provisions was not argued on this appeal. However, in both the Ontario Court and Superior Court decisions that considered the constitutional validity of the section, there was an analysis as to whether a victim surcharge constituted either a fine or a penalty. The two courts differed on their conclusion to that analysis.
[5] This court has been asked to resolve whether victim surcharges can be ordered concurrently. The court has been informed that while an order of concurrent victim surcharges is common practice for the justice whose decision has been appealed, it is not a wide-spread practice in this province. Further, there is no appellant authority to clarify the issue.
Position of the Parties
[6] It is the position of the Crown that a victim surcharge is not in the nature of a penalty but a stand alone order, such as one for DNA under s. 487 or a weapons prohibition under s. 109. If the victim surcharge is a penalty such as a fine, as urged by counsel for the respondent, the Crown urges the court to find that there is binding precedent that prevents fines from being made concurrently.
[7] The Crown further says that even if surcharges were otherwise capable of being levied concurrently, this is further prohibited by their mandatory requirement. The respondent says that the surcharge is part of the sentence imposed. While a victim surcharge may be mandatory, whether it is imposed concurrently or consecutively, is within the proper discretion of the sentencing judge.
Analysis
The Nature of the Victim Surcharge
[8] The victim surcharge section of the Criminal Code reads in part:
s. 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.
(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.
(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.
[9] Section 718.3, “Discretion respecting punishment”, reads:
s. 718.3(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
(3) Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of imprisonment in default of payment of the fine is not specified in the enactment that prescribes the punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed the term of imprisonment that is prescribed in respect of the offence.
(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when
(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
(d) subsection 743.5(1) or (2) applies.
[10] The Crown urges upon this court the analysis of Glass J. sitting as a summary conviction appeal court in R. v. Tinker, 2015 ONSC 2284, at para. 29:
I do not read a surcharge to be a fine. It is not in the form of a penalty. It flows from a conviction for a crime, but it is not a sanction in its own right. Rather, it is quite simply what the Crown has described it to be, which is a sum of money established to be a consequence of breaking the law. That is different from a sanction because it is not in the same category as a fine, a tax, or a penalty. Rather, the surcharge is a sum of money that goes into a pool of resources to help victims of crime. Just as there are requirements for providing DNA samples upon conviction of offences and they are not sanctions, so do victim surcharges become requirements without being penalties.
[11] The court went on to find that the surcharge section amendments did not offend the Charter. That decision effectively decided in Ontario an issue on which there had been multiple decisions both in favour and against the constitutionally of the new sections.
[12] A similar conclusion was reached by O’Donnell J. in R. v. Novielli, 2015 ONCJ 192. In a free-wheeling and entertaining judgment, he adopted the Nova Scotia Court of Appeal’s decision in R. v. Crowell (1992), 76 C.C.C. (3d) 413, [1992] N.S.J. No. 380 (N.S.C.A.), which concluded:
In some respects the victim fine surcharge is not dissimilar to the court costs which were routinely added to fines until relatively recently.
The victim fine surcharge is therefore neither a true tax nor a true fine, but rather a unique penalty in the nature of a general kind of restitution….
I note that Crowell preceded the amendments that are before this court on appeal.
[13] Unlike the Ontario Court of Justice, I am not bound by the decision in Tinker. However, I accept its authority on the nature of victim surcharges for this purpose of this appeal.
[14] I conclude that these surcharges are not penalties but a form of ancillary order, similar to driving and weapon prohibitions or DNA and S.O.I.R.A. orders. It was not argued in this case that s. 718.3 would apply to s. 737 or that the absence of “minimum” in the language of s. 737 means it is not a minimum penalty. The Crown maintained that the surcharge was not a penalty or punishment. The defence position was that the mandatory aspect of the provision did not prevent concurrent treatment.
[15] Having concluded that the surcharge is in the nature of other ancillary orders, this appeal requires the court, in my view, to determine further whether ancillary orders can run concurrently, whether mandatory or not. If so, what principles of determining whether a sentence should be concurrent or consecutive are applicable to an ancillary order? Finally, if there is no authority under the Criminal Code to impose concurrent fines, is it appropriate to impose concurrent surcharges, as done in this case. In such application, the court should be cognizant of the difference between surcharges and fines.
Can Other Ancillary Orders Run Concurrently?
[16] Whether it is termed concurrent or not, a review of a wide sampling of sentencing in this province makes it clear that driving prohibition orders frequently are concurrent. This occurs where their respective charges that mandate the orders are itself running concurrent to each other. [1]
[17] Section 109 orders, when made for life, are typically made where the offender is being sentenced on multiple counts of weapons offences. A lifetime prohibition order is appropriately imposed by a single order pursuant to s. 109. This lone order follows both the imposition of consecutive and concurrent sentences. [2]
[18] Section 487.051 mandates the ordering of bodily substance samples for the purpose of forensic DNA analysis in the case of primary designated offences. The practice in Ontario, as evidenced by a review of case law at both levels of criminal court, is to make a single order regardless of the number of primary designated offences an accused is being sentenced for.
[19] The policies of the police services in this region are to not take a sample upon the order being made if the accused’s DNA is already in the DNA databank on charges which are not current and the time for an appeal has passed. The term concurrent does not appear in the cases reviewed in relation to DNA orders. However, the effect of ordering a DNA sample at the conclusion of the sentencing hearing, including convictions which run concurrent, is as if the word concurrent was included.
Concurrent Sentencing Principles
[20] The primary principles governing the applicability of a concurrent sentence where there are multiple charges has long been that there must exist between the individual charges a nexus both in time and jurisdiction and careful resort to the principle of totality. As noted in Clayton C. Ruby, Sentencing 7th ed. (Toronto: Lexis Nexus, 2008), at page 520:
“A great deal of judicial time has been taken in assessing the rules as to whether sentences should be consecutive or concurrent in particular circumstances. The language used in Paul [3] suggests that this task remains crucial.”
[21] There is no definition of “concurrent” in the Criminal Code. No rule in the Criminal Code would prevent a surcharge from running concurrently as part of a sentence. Lamer J., in R. v. Paul [4], sets out a longstanding principle of interpretation:
But when dealing with a penal statute the rule is that, if in construing a statute there appears any reasonable ambiguity, it be resolved by giving the statute the meaning most favourable to the persons liable to penalty.
See also R. v. Paré, [1987] 2 S.C.R. 618; 38 C.C.C.(3d) 97.
[22] In R. v. Hatch (1979), 31 N.S.R.(2d) 110, [1979] N.S.J. No. 520 (N.S.S.C. App. Div.), at p. 113, the court urged “common sense in determining what is a ‘reasonably close’ nexus and not fear to impose concurrent sentences if the offences have been committed as part of a continuing operation in a relatively short period of time.”
[23] In R. v. De la Cruz (2003), 174 C.C.C.(3d) 554, [2003] O.J. No. 1971, (Ont. C.A.), the Ontario Court of Appeal imposed concurrent sentences for criminal harassment and breach of recognizance where the behaviour took place over a four month period. The court found that the two crimes were linked by the same conduct.
[24] A few years later in R. v. W.Q. (2006), 210 C.C.C.(3d) 398, [2006] O.J. No. 2491, (Ont. C.A.), the same court upheld consecutive sentences on charges of sexual assault and criminal harassment when the second offence took place after the victim moved to a different location.
[25] Ruby concludes, at page 522:
“Ultimately, the tests are very flexible, and it becomes a fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences.”
Application of Concurrent Principles to Ancillary Orders
[26] Ancillary is a term not found in the Criminal Code to define orders that arise from convictions but are not strictly penalties on their own. Black’s Law Dictionary, 9th edition, defines ancillary as “supplementary; subordinate.” The Dictionary of Canadian Law, 1st edition, defines ancillary as “(adjective) aiding; assisting; auxiliary.” The same volume simply defines auxiliary as “assisting.” The general dictionary meanings for ancillary are similar.
[27] These definitions assist in understanding the language of the Criminal Code sections that authorize the various ancillary orders that a court shall or may make. In combination, they describe orders whose validity and authority derive from the convictions or discharges that are registered as a result of findings of guilt made on the criminal charges to which they relate. They are not penalties but part of the sentence imposed by the presiding judge.
[28] Accordingly, while the Criminal Code is silent on the issue and there is no authority for or against surcharges running concurrently, it would seem to flow logically that a subsidiary order can be treated similarly to the charge it was ancillary to, reflecting both the totality principle and the meaning of the sections most favourable to the person being sentenced.
[29] In the case on appeal, Mr. Fedele admitted theft under $5,000 in a Zehrs store on January 12, 2014 in the Town of LaSalle (adjacent to the City of Windsor), and the same offence on July 23, 2014 in the City of Windsor from Shoppers Drug Mart. In sentencing Mr. Fedele to five (5) days concurrent on both charges, the judge had before her the information that he was, in both cases, stealing as a result of his drug habit. At the time of sentencing, he was receiving counselling and participating in a methadone maintenance programme. In addition to the victim surcharge, there was an 18 month probation term concurrent on both charges. The appropriateness of concurrent jail sentences was not disputed on this appeal.
[30] In a previous unreported decision, R. v. Grandmaison (July 27, 2015, Ont. C.J.), Windsor Information No. 14-2003, in the Crown brief of authorities (Tab 3), Rawlins J. indicated in an exchange with Crown counsel that she was not clear on the authority for concurrent victim surcharges:
“THE COURT: ...But it just would seem unconscionable with counts one to twelve when he pleaded guilty, self represented, I have done it before and since I’m doing the sentence concurrently I figure I should be able to do the victim fine surcharge concurrently.”
[31] It seems clear from those reasons that the surcharge’s treatment in that case was designed to follow that of the charges it was ancillary to and reflect the principle of totality. There is no reason to conclude that the rationale was different in the case on appeal.
[32] The sentencing judge is an extremely experienced Ontario Court criminal division justice. That court is a specialized court that deals with the vast majority of criminal sentencings in this jurisdiction. Absent an error in principle, deference is owed on a finding that a concurrent sentence is appropriate. [5]
Does the Monetary Nature of a Surcharge Require its Consecutive Imposition?
[33] In Novielli, in a section titled “I Have Seen The Enemy and He is Us,” Justice O’Donnell discusses the apparent removal of judicial discretion by Parliament in the 2013 amendments:
Discretion is an essential feature of any judicial system. That is because criminal cases are not one-size-fits-all widgets and complainants, defendants and witnesses are human beings, who come in all shapes, sizes, personalities, strengths, weaknesses and backgrounds. Tailor-made outcomes will generally be more just than outcomes unduly constrained by artificial and inflexible external rules. The problem is that the unconstrained use of discretion, judicial or otherwise, can lead to anarchy.
[Emphasis Added]
The imposition of the victim surcharge by the judiciary is one area in which Parliament could reasonably conclude that judicial discretion had been mis-used on a wide scale. Indeed, in my opinion, any other conclusion would be insupportable.
[34] His Honour concluded, “I do not believe it overstates the case to conclude that the victim surcharge provisions of the Criminal Code have effectively been the object of a wide-scale process of judicial nullification”: see Novielli, at para. 33. (emphasis added)
[35] While declining to endorse O’Donnell J.’s conclusions regarding judicial nullification, I do agree that it would appear Parliament’s desire to create a fund to assist victims of crime had been largely undermined by the exclusion of victim surcharges in the majority of cases. This may have resulted from the reality that most people convicted of criminal offences generally were not in a position to be able to afford further monetary penalties. It might also reflect the view of the relationship between particular charges and victims of crime. Drug addicts, for instance, convicted of simple possession charges may be considered more of a victim themselves than the perpetrator of an offence upon a victim.
[36] While the above examples may be good reasons for not imposing victim surcharges, the conclusion reached in Novielli that surcharges were almost automatically waived without much consideration to their applicability to the circumstances, or to the importance of the surcharge as a social tool, appears to have some foundation.
[37] I differ with O’Donnell J.’s observation in Novielli in regards to his characterization of the practice of waiving surcharges as the “unconstrained use of discretion”. What O’Donnell J. appears to be criticizing is actually the failure to exercise judicial discretion: specifically, in the automatic waiving of the surcharge upon the mere request being made. Black’s Law Dictionary, 10th ed., (West Group, 2014), defines “judicial discretion” as “the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the principles of law”. I cannot conclude that Parliament intended to eliminate the proper use of judicial discretion in the imposition of concurrent sentences when amending s. 737.
[38] In light of the recent decision in R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13, it is clear that the Supreme Court of Canada continues to emphasize the need for sentencing judges to have discretion in the sentencing process. The similarity of victim surcharges to other ancillary orders and their connection in the legislation to the sentencing process is clear. In view of the above, logic would dictate that the discretion awarded to judges when making jail sentences concurrent would extend to surcharges arising from the same offenses.
[39] It is clear, however, that concurrent fines have been ruled as inappropriate: see R. v. Ward (1980), 56 C.C.C. (2d) 15, [1980] O.J. No. 1439 (Ont. C.A.); Ontario v. Flex-N-Gate Canada Co., 2014 ONCA 53, [2014] O.J. No. 261.
[40] R. v. Ward, frequently quoted as authority for the proposition that separate fines are to be imposed for each offence and not to be made concurrent, relied on the single case of R. v. Derdarian, Reycraft and Derdarian Ltd. (1965), [1965] 2 O.R. 725, [1966] 1 C.C.C. 271, [1965] O.J. No. 1041. That case was an appeal, determined by a single judge of the Ontario High Court, It overturned a Magistrate’s imposition of a $25 fine, plus costs, concurrent on two charges under s. 131(1) of the Income Tax Act, R.S.C. 1952, c. 148.
[41] At paras. 3-4 of Derdarian, Moorhouse J. states:
[3] The use of the word "concurrent" poses the problem. Jowitt's Dictionary of English Law at p. 1611 reads:
Upon a conviction on indictment of several offences, whether on separate indictments or on separate counts in the one indictment, the court may, in general, order that the sentences be either consecutive or concurrent.
[4] Counsel informed me he has been unable to find any authority dealing with the question of fines ordered to be paid concurrently. I have found none. I am not aware of any authority which permits an order that the fines for two separate offences should be paid at the same time which I think is the ordinary meaning of the word concurrent as found in most dictionaries. If on the other hand the interpretation is as I find in one example in the Shorter Oxford Dictionary as meaning "covering the same ground" it is possible the learned Magistrate intended the payment of one fine should cover the punishment imposed for both. In such case, in my respectful opinion, he erred.
[42] The Dictionary of Canadian Law, defines concurrent as “contemporaneous.” Concurrently is defined as “at the same time, contemporaneously.” A concurrent sentence is defines as “two or more terms of imprisonment served simultaneously.” Black’s Law Dictionary defines concurrent as “operating at the same time; covering the same matters.”
[43] It would appear that Derdarian was decided on the basis that there was no precedent for concurrent fines, defining concurrent to mean “paid at the same time”. With respect, the interpretation relied upon in Derdarian, quite apart from being vaguely set out, is too restrictive. On the other hand, the definition of “covering the same ground” is very similar to the legal dictionary definition of “covering the same matters.” The decision provides no rationale for the conclusion that having one fine cover both charges is an error. It does not seem any less consistent with sentencing principles, including that of totality for a monetary amount to “cover the same matter” than it would for a jail sentence. Derdarian and the cases following it cite no authority prohibiting such orders.
Conclusion
[44] Given that a surcharge is neither a fine nor a penalty but is part of the sentence, I conclude that there is no legal impediment preventing two victim surcharge ancillary orders running concurrently. That interpretation is consistent with the totality principle and Paul. The concurrent ancillary orders would naturally flow from the legal and properly imposed concurrent jail sentences. I find that the learned justice is owed deference on the issue of concurrent sentencing. It has not been demonstrated that imposing concurrent ancillary orders are an error of principle. The jurisprudence that precludes concurrent fines provides neither a rationale nor a foundation for that conclusion. There is no reversible error in the decision. The appeal is dismissed and the sentence confirmed.
“original signed and released, Carey J.”
Thomas J. Carey Justice
Released: June 9, 2016
COURT FILE NO.: CR-15-3490-AP ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – Cesare Fedele Respondent REASONS on appeal Thomas J. Carey Justice
Released: June 9, 2016
Footnotes:
[1] See R. v. Muzzo, 2016 ONSC 2068
[2] See R. v. Vader, 2013 ONSC 109, O.J. No. 789 and R. v. Nascimento, 2014 ONSC 6739
[3] R. v. Paul, [1982] 1 S.C.R. 621, 67 C.C.C. (2d) 97, [1982] S.C.J. No. 32; Desmarest (1986), 2 Q.A.C. 151, [1986] J.Q. no 1611(Que. C.A.).
[4] R. v. Paul, supra, at page 97
[5] R. v. M.(T.E.), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42, at para. 46