


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fedele, 2017 ONCA 554

DATE: 20170630

DOCKET: C62360

Rouleau, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Cesare Fedele

Respondent

Katherine Beaudoin, for the appellant

Scott C.
    Hutchison and Lauren Binhammer, for the respondent

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.

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 Crowns 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 courts 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 respondents 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 respondents 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.

Suramende
          compensatoire

737 (1) Dans
          le cas où il est condamné  ou absous aux termes de larticle 730  à légard
          dune infraction prévue à la présente loi ou à la
Loi réglementant
          certaines drogues et autres substances
, le contrevenant est tenu de
          verser une suramende compensatoire, en plus de toute autre peine qui lui est
          infligée.

Montant de
          la suramende

(2) Sous
          réserve du paragraphe (3), le montant de la suramende compensatoire
          représente :

a) trente pour
          cent de lamende infligée pour linfraction;

b) si aucune
          amende nest infligée :

(i) 100 $ pour
          une infraction punissable sur déclaration de culpabilité par procédure
          sommaire,

(ii) 200 $
          pour une infraction punissable sur déclaration de culpabilité par mise en
          accusation.

Montant
          supérieur

(3) Le
          tribunal peut, sil estime que les circonstances le justifient et sil est
          convaincu que le contrevenant a la capacité de payer, ordonner à celui-ci de
          verser une suramende compensatoire supérieure à celle prévue au paragraphe
          (2).

Échéance de
          paiement

(4) La
          suramende compensatoire est à payer à la date prévue par le
          lieutenant-gouverneur en conseil de la province où la suramende est imposée
          ou, à défaut, dans un délai raisonnable après limposition de la suramende.

Affectation
          des suramendes compensatoires

(7) Les
          suramendes compensatoires sont affectées à laide aux victimes dactes
          criminels en conformité avec les instructions du lieutenant-gouverneur en
          conseil de la province où elles sont infligées.

Avis

(8) Le
          tribunal fait donner au contrevenant un avis écrit établissant, en ce qui
          concerne la suramende compensatoire :

a) le montant;

b) les
          modalités du paiement;

c) léchéance
          du paiement;

d) la
          procédure à suivre pour présenter une demande visant à modifier les
          conditions prévues aux alinéas b) et c) en conformité avec larticle 734.3.

Exécution

(9) Les
          paragraphes 734(3) à (7) et les articles 734.3, 734.5, 734.7, 734.8 et 736
          sappliquent, avec les adaptations nécessaires, aux suramendes compensatoires
          infligées aux termes du paragraphe (1) et, pour lapplication de ces
          dispositions :

a) à
          lexception du paragraphe 734.8(5), la mention de « amende » vaut mention de
          « suramende compensatoire »;

b) lavis
          donné conformément au paragraphe (8) est réputé être une ordonnance rendue
          par le tribunal en application de larticle 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.
[1]
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.
[2]

[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 Crowns
    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





[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.


