Legislation did not allow judges to avoid consequences imposed on accused

Ontario criminal | Appeal

SENTENCE APPEAL

Legislation did not allow judges to avoid consequences imposed on accused

Crown appealed four decisions in which sentencing judges made exemptions to accused and did not order them to pay victim fine surcharges. Crown’s four appeals were granted and four rulings by trial judges as to victim fine surcharge were set aside; accused ordered to pay victim fine surcharges. In absence of constitutional issue having been raised before trial court, Crown and all defence counsel essentially agreed that there was no alternative but to allow appeals. Each ruling demonstrated effort by trial judge to avoid consequences imposed on accused by new legislation in s. 737 of Criminal Code mandating imposition of victim fine surcharge. Each of trial judges obviously viewed new legislation as detracting from fair application of sentencing principles. Problem was that applicable legislation did not allow them this discretion. Each of rulings, as consequence, amounted to legal error.
R. v. Nicholson (May. 15, 2014, Ont. S.C.J., L. Ratushny J., File No. Ottawa 13-13183, 13-13506, 13-12947, 13-12990) Decision at 113 W.C.B. (2d) 590 was varied.  115 W.C.B. (2d) 318.

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