No Discretion to Circumvent

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Do sentencing judges have the discretion to impose concurrent victim surcharges [VS]? The Ontario Court of Appeal unanimously says no. In short, the Court held that “there is no discretion in the court to circumvent this automatic imposition [of the VS] by ordering concurrent victim surcharges.” [Fedele @1]

The Ontario Court of Appeal released the decision in Fedele2017 ONCA 554 on the same day that it unanimously upheld the constitutionality of the surcharge: Tinker2017 ONCA 552

Fedele stole a wheel of cheese and a pack of razor blades. He plead guilty. A pre-sentence report revealed that Fedele was supported by the Ontario Disability Support Program. He was sentenced to five days in jail and 18months probation. The sentencing judge ordered that the victim surcharge of 100$ per conviction be applied concurrently.

The Crown appeal to the Superior Court was dismissed. 

The Summary Conviction Appeal court analogized the VS to a DNA order, in other words, “one order will suffice even where there are multiple convictions” [@9]

The Court disagreed and held that:

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. [@13]

First, the court noted that while

[i]t 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. [@32]

Second, the Court explained that the terms concurrent and consecutive do not apply to monetary amounts:

[c]oncurrent 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. [@34]

In short, there is no discretion to circumvent the VS.