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.  


The victim surcharge...

Nancy Bateman pleaded guilty to assault. Bateman had thrown a bowl of hot soup at the victim while the two were residents in “a transitional housing facility in the 200 block of Main Street in Vancouver” [para 4]. The sentencing judge imposed an absolute discharge. In relation to the victim surcharge the appeal court noted that the following transpired:

In relation to the mandatory $100 victim surcharge under s. 737 for this summary conviction offence, Defence counsel said the accused wanted the victim surcharge to be payable forthwith and to be found in default. After consulting with his client, however, he changed this submission and said she wanted to have six months to pay. The trial judge acceded to this request, stating: 
THE COURT:  Yes. What I will do presently today is I will give Ms. Bateman six months to pay the surcharge.
Another lawyer who happened to be in the courtroom asked if she could “assist the court” and then suggested a “rather unique, relatively creative approach” using the fine option program in s. 736.
Over the objection of the Crown, the trial judge then said that she was going to deem the victim surcharge paid under s. 736(3). When Crown counsel asked by what mechanism, the trial judge stated: 
THE COURT:  I am just deeming it paid. 
Proceedings were then adjourned, and the accused and both counsel left the courtroom.
Later the same day, at the request of the trial judge, both Crown and defence counsel returned to the courtroom. In the absence of the accused, the trial judge announced that she was going to enter a stay of proceedings on the charge. When Crown counsel asked the trial judge to provide reasons, the trial judge said:
THE COURT:  Well, if the matter had proceeded to trial, I believe the young woman would have been acquitted. And she was not – she clearly wanted to proceed, most likely because of her mental health issues. And perhaps those should have been taken into account when the charge approval decision was made.
[Paras 9-13].

The Crown appealed. The appeal was allowed in relation to the stay: 2015 BCSC 2071. Bateman conceded that the judge was functus. The appeal court held that the sentencing judge’s reasons did not “provide a proper basis for entering a stay” [para 15].

Turning to address the victim surcharge, the appeal court held:

I agree with counsel for Ms. Bateman that notwithstanding s. 737(4), a sentencing judge retains a discretion to allow no time to pay, pursuant to s. 734.7(2). This is because s. 737(9) provides, inter alia, that s. 734.7 applies, with any modifications that the circumstances require, in respect of a victim surcharge, and that any reference to “fine” in s. 734.7 must be read as if it were a reference to “victim surcharge”. [Para 32].

Notwithstanding this finding, the court imposed the surcharge and granted six months to pay – the initial position advanced by Bateman.

With respect, there are at least two problems with this finding. First, having concluded that the offender lacked the means to pay it is illogical and improper to impose the surcharge and vary the time to pay causing an immediate default. In British Columbia the offender would have been grant 2 months to pay. If he did not pay – because, as the court found on the day of sentencing he was unable to – then no jail would be imposed: see R v Wu, 2003 SCC 73. In effect, the court has imposed an unnecessary jail term.

Second, the point of section 734.3 (which allows for the court to vary time to pay) is to allow an offender more time to pay. Overriding the statutory time to pay – forcing immediate default – is not only inconsistent with the dicta in Wu (that courts should not determine future ability to pay at the time of sentencing) but it also appears to be a means to avoid the imposition of the surcharge.


Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
[. . .]
An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases.