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SENTENCING - Particular sanctions - Victim fine surcharge - Procedure - Jurisdiction to impose sentence - Appeals

Tuesday, July 18, 2017 @ 7:45 AM  

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Appeal by the Crown from a summary conviction appeal court judgment affirming the imposition of concurrent victim surcharges. The respondent, Fedele, stole half a wheel of cheese from a store. Six months later, the respondent stole a pack of razor blades. He pled guilty to two counts of theft under $5,000. The respondent was on disability support and had a history of substance abuse. He was sentenced to two concurrent five-day custodial terms, plus 18 months' probation. The sentencing judge ordered that the $100 victim surcharge available for each offence would be concurrently imposed. Therefore, one payment of $100 covered both surcharges. On appeal, the Superior Court of Justice affirmed the imposition of concurrent victim surcharges. The Court reasoned that the imposition of concurrent custodial sentences necessarily permitted the imposition of concurrent ancillary orders, such as the victim surcharge. Accordingly, a concurrent approach to the victim surcharge appropriately reflected the totality principle. The Crown appealed to the Court of Appeal.

HELD: Appeal allowed. The legislative history and text made it clear that victim surcharges were imposed automatically upon conviction or discharge for each and every offence. There was no judicial discretion regarding imposition of the discharge, and no discretion to circumvent automatic imposition by ordering concurrent victim surcharges. Ordering concurrent surcharges lessened the degree of offender accountability and reduced the provision of funds for victim services. Concurrent surcharges were inconsistent with the concept of concurrent and consecutive sentences, which related to periods of time rather than amounts of money. A sentence providing for concurrent victim surcharges could not lawfully be imposed. The summary conviction appeal court judgment was set aside with the sentence varied to impose a victim surcharge for each count.

R. v. Fedele, [2017] O.J. No. 3441, Ontario Court of Appeal, P.S. Rouleau, K.M. van Rensburg and G.I. Pardu JJ.A., June 30, 2017. Digest No. TLD-July172017003