Local case to test issue of mandatory surcharges

Court of Appeal ruled judges can’t change set surcharges, even in cases of hardship

A mundane shoplifting case involving half a wheel of cheese and a pack of razors may be headed to the highest court in the land.

At issue is whether judges have the discretion to give offenders a break on victim surcharges — levies assessed on everything from traffic tickets to murder charges. That’s what Ontario court Justice Micheline Rawlins did in 2015 when she sentenced shoplifter Cesare Fedele, who pleaded guilty to two counts of theft after getting caught twice stealing from local stores.

Rawlins ordered the man to pay one levy instead of two, reducing what would have been $200 in surcharges to $100.

The Ontario Court of Appeal recently ruled that judges can’t tinker with the set charges, even in cases of hardship. It overturned Rawlins’ decision and that of Superior Court Justice Thomas Carey, who heard an appeal of the case in 2016.

“This was a run-of-the-mill guilty plea,” defence lawyer Maria Carroccia said Friday, recalling details of the case. “These items were necessities. He’s on a fixed income.”

Fedele, who is in his 50s, has a history of substance abuse and is on the Ontario Disability Support Program. Rawlins sentenced him to five days in jail followed by 18 months’ probation. Rawlins imposed the mandatory victim surcharge — a set levy that goes into a fund to assist victims of crime — but allowed Fedele to pay just one. The second, Rawlins said, would be “concurrent” to the first.

Carroccia said Rawlins offered Fedele the break without being asked.

“It’s something she has done on many an occasion when the circumstances call for that.”

Carroccia, who is also president of the Criminal Lawyers’ Association of Windsor and Essex County, said Rawlins was not the only local judge who routinely imposed concurrent fines.

The province decided to make an example of the Fedele case by appealing it, twice.

Now, Carroccia said, it may be appealed again, this time to the Supreme Court of Canada, to decide if the mandatory surcharges are constitutional.

Victim surcharges have existed in the Canadian Criminal Code since 1989. Ontario also imposes surcharges for provincial offences.

The levies used to be called “victim fine surcharges” and were fixed at $35, but judges had the discretion to waive them. Judges lost that discretion in 2013 when new legislation was enacted that also increased the fines. The new rules state that if an offender is punished by fine, there’s a 30-per-cent surcharge. If an offender is sent to jail or given some other punishment besides a fine, the surcharge is $100 for offences punishable by summary conviction and $200 for offences punishable by indictment.

The Ontario Court of Appeal explained in its decision that the purpose of the fines is to provide funds for victim services and to make offenders accountable to victims and the community.

“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,” Justice Paul Rouleau of the appellate court wrote.

Carroccia said there’s another train of thought on the surcharges beyond the financial hardship to the offender.

“In circumstances where a person is on Ontario Works or ODSP (Ontario Disability Support Program), for example, they are already in receipt of government monies,” she said. “So, basically, you are taking government funds and giving it back to the government.”

Carroccia noted the appellate court surmised what lawmakers intended when victim surcharges were enacted, but there hasn’t been much analysis of the issue.

“There’s certainly a possibility that the case will be appealed further.”