DATE: 20011212
DOCKET: C35987
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and SIMMONS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Marie Comiskey for the Appellant
Appellant
- and -
YU WU
Michelle Fuerst for the Respondent
Respondent
Heard: October 19, 2001
On appeal from the order of Justice Cheryl Robertson dated February 16, 2001, dismissing a summary conviction appeal from the sentence imposed by Judge Gilles Renaud dated March 9, 2000.
SHARPE J.A.:
[1] The respondent was convicted of possession of contraband tobacco contrary to s. 240(1) of the Excise Act, R.S. 1985, c. E-14. Parliament has prescribed a minimum fine for this offence. The trial judge imposed the minimum fine, in this case $9,600, gave the appellant no time to pay the fine, and imposed a 75-day conditional sentence in default of payment. The Crown’s summary conviction appeal against the sentence was dismissed. The Crown seeks leave to appeal and, if leave is granted, appeals the sentence on the ground that a conditional sentence is not available in default of payment of a fine.
FACTS
[2] After a three-day trial, the respondent was convicted of possessing 300 cartons of contraband tobacco contrary to the Excise Act, s. 240(1). The trial judge sentenced the respondent to the minimum fine calculated pursuant to s. 240(1.1) and totalling $9,600. Although no evidence was called at the sentencing stage concerning the respondent’s ability to pay the fine, the trial judge found that the respondent did not have sufficient means to pay it. The respondent had testified during the trial that he was unemployed due to an injury, that he received $965.00 a month in benefits, and that he was responsible for the support of his sixteen year-old daughter.
[3] In his reasons for sentence, the trial judge stated that but for the minimum fine, he would have imposed a suspended sentence. The respondent, he noted, was “a first offender having been involved in very minimal behaviour.” However, in view of the statutory minimum fine, the trial judge held that he had no option but to impose a fine, stating that “that is Parliament’s wish and I have to give effect to that wish.” The trial judge explicitly regretted the fact that Ontario did not make provision for offenders to “work off” fines and observed that even if he did impose a short custodial sentence, it was likely that the respondent would be released “within a matter of days” due to the limited availability of custodial resources.
[4] The trial judge concluded that given the circumstances of the offence and the offender, a custodial sentence was not required and that a conditional sentence would be the appropriate penalty. The respondent, he held, was not a danger to the community. On the other hand, the trial judge felt that the sentence should reflect the fact that the community was “bedevilled” by smuggling, an activity arising from a “criminal undercurrent which attacks our respect for law and order and which attacks the community itself.” The trial judge noted that “a conditional sentence with appropriate, severe conditions is a significant deterrent and denunciatory penalty”, echoing the words of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. Accordingly, the trial judge imposed the mandatory fine but gave the respondent no time to pay. In default of payment, the trial judge imposed a 75-day conditional sentence that included house arrest between the hours of 6:00 p.m. and 6:00 a.m. subject to narrowly defined exceptions for employment, medical care or religious observance.
[5] The Crown’s appeal to the Superior Court of Justice was dismissed on the ground that the trial judge’s disposition of the matter was in accord with the decision of the Quebec Court of Appeal in R. c. Savard (2000), 2000 CanLII 6767 (QC CA), 38 C.R. (5th) 152, discussed below.
ISSUE
[6] The following issue arises on this appeal:
Is there a discretion to impose a conditional sentence in default of payment of the minimum fine prescribed by s. 240(1) of the Excise Act where no time is provided for payment of the fine?
LEGISLATION
Excise Act, R.S. 1985, c. E-14
Unlawful sale or possession of manufactured tobacco or cigars
- (1) Subject to subsections (2) and (3), every person who sells or offers for sale or has in the person’s possession any manufactured tobacco or cigars, whether manufactured in or imported into Canada, not put up in packages and stamped with tobacco stamps or cigar stamps in accordance with this Act and the ministerial regulations,
(a) is guilty of an indictable offence and liable to
(i) a fine of not less than the amount determined under subsection (1.1) and not more than the amount determined under subsection (1.2), or
(ii) both the fine described in subparagraph (i) and imprisonment for a term not exceeding 5 years; or
(b) is guilty of an offence punishable on summary conviction and liable to
(i) a fine of not less than the amount determined under subsection (1.1) and not more than the lesser of $500,000 and the amount determined under subsection (1.2), or
(ii) both the fine described in subparagraph (i) and imprisonment for a term not exceeding two years.
Minimum amount
(1.1) The amount determined under this subsection for an offence under subsection (1) in relation to manufactured tobacco or cigars is the greater of
(a) The total of
(i) $0.16 multiplied by the number of cigarettes, if any, to which the offence relates,
(ii) $0.11 multiplied by the number of tobacco sticks, if any, to which the offence relates,
(iii) $0.11 multiplied by the number of grams of manufactured tobacco, if any, other than cigarettes or tobacco sticks, to which the offence relates, and
(iv) $0.16 multiplied by the number of cigars, if any, to which the offence relates, and
(b) $1,000 in the case of an indictable offence and $500 in the case of an offence punishable on summary conviction.
Maximum amount
(1.2) The amount determined under this subsection for an offence under subsection (1) in relation to manufactured tobacco or cigars is the greater of
(a) The total of
(i) $0.24 multiplied by the number of cigarettes, if any, to which the offence relates,
(ii) $0.16 multiplied by the number of tobacco sticks, if any, to which the offence relates,
(iii) $0.16 multiplied by the number of grams of manufactured tobacco, if any, other than cigarettes or tobacco sticks, to which the offence relates, and
(iv) $0.50 multiplied by the number of cigars, if any, to which the offence relates, and
(b) $1,000 in the case of an indictable offence and $500 in the case of an offence punishable on summary conviction.
Imprisonment in default of payment
(4) Where a fine is imposed under subsection (1), a term of imprisonment may be imposed in default of payment of the fine, but no such term shall exceed
(a) where the fine is imposed under paragraph (1)(a), five years in addition to any other term of imprisonment imposed on the person under that paragraph; and
(b) where the fine is imposed under paragraph (1)(b), two years in addition to any other term of imprisonment imposed on the person under that paragraph.
Criminal Code, R.S.C. 1985, c. C-46.
Imposing of conditional sentence
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
ANALYSIS
[7] The Quebec Court of Appeal has considered the use of conditional sentences in default of mandatory minimum fines in three recent decisions. In R. v. Giroux (1999), 1999 CanLII 13396 (QC CA), 141 C.C.C. (3d) 67, the accused was convicted of offences under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and under the Excise Act. The mandatory minimum fine of $369,620 was imposed and in default of payment, the accused was sentenced to 18 months’ imprisonment followed by another six months less a day. The Court allowed a sentence appeal and substituted a conditional sentence pursuant to which the appellant would serve the sentence of imprisonment in default of payment in the community under relatively strict conditions. The Court observed at p. 73 that “while providing for substantial fines, [the legislation] did not provide for minimum sentences in default of payment of those fines.” The Court held that a conditional sentence was appropriate as the appellant, who had no criminal record, was “a small cog in the operation” and there appeared to be little danger that he would re-offend.
[8] The Quebec Court of Appeal revisited the issue in R c. Savard, supra. There, the accused was sentenced to 18 months’ imprisonment, together with the minimum fine of $967,919. The accused was given 12 months’ to pay the fine, and in default of payment, was sentenced to an additional 20 months imprisonment. He appealed the sentence, arguing that both the 18-month term of imprisonment and the 20-month term in default of payment should be changed to a conditional sentence. The appeal was allowed, and given the circumstances of the appellant, the Court substituted a conditional sentence for the 18-month term of imprisonment and set aside the period of imprisonment in default of payment of the fine.
[9] Savard qualified the availability of conditional sentences in default of payment of a fine. Proulx J.A., writing for the Court, referred to a long line of authority holding that where a fine is imposed, the fine is the punishment, not the sentence of imprisonment in default of payment which merely serves as a mode of enforcement of the fine: see Regimbald v. Chong Chow (1925), 38 Que. K.B. 440; R. v. Steeves (1914), 1914 CanLII 643 (NB CA), 24 C.C.C. 183 (N.B.C.A.); R. v. Tomlinson (1971), 1971 CanLII 1198 (BC SC), 2 C.C.C. (2d) 97 (B.C.S.C.). It followed, held Proulx J.A., that when a court imposes a term of imprisonment in default of payment of a fine, it does not actually impose a “sentence of imprisonment” within the meaning of s. 742.1 of the Criminal Code, and accordingly the court does not have the option of imposing a conditional sentence as an alternative to imprisonment. Proulx J.A. thus stated at p. 161 that
[q]uand le législateur prévoit … une amende minimale, soit-elle exagérée ou non et au-delà les moyens du contrevenant, le tribunal doit considérer le délai de paiement, les modalités et, les cas échéant, la clause d’emprisonnement à défaut de paiement.” [^1]
[10] Savard distinguished, however, between two classes of conditional sentences in default of payment of a fine: those where the offender is given time to pay the fine and those where the offender is given no time to pay. Proulx J.A. observed that s. 734.7(2) of the Criminal Code allows for “immediate committal” of an offender in default of payment of a fine where no time is given to pay the fine, provided that the court states its reasons for immediate commital. Proulx J.A. noted that the court’s reasons for preferring immediate committal were significant, since they directly affected the character of the sentence imposed. In particular, he stated at p. 159 that
dans la hypothèse où … il apparaîtrait au tribunal que l’inculpé ne pourrait pas acquitter l’amende considérable imposée, il serait difficile de considérer que l’imprisonnement ordonné à défaut de paiement soit « une mesure incitative de paiement »: dans la réalité des choses, cet imprisonnement constituterait la « peine » infligée. [^2]
[11] Proulx J.A. held that since in these circumstances the decision not to give an offender any time to pay a fine amounts to an immediate sentence of imprisonment, the availability of a conditional sentence under s. 742.1 of the Criminal Code had to be considered. As Proulx J.A. stated at p. 163:
Il me paraîtrait conforme au principe général d’interprétation des lois … que cette periode d’incarcération immédiate à laquelle est condamné le delinquant incapable de payer, puisse être couverte par l’art. 742.1 C.cr: il ne serait pas contraire aux principes directeurs de la détermination de la peine que la personne condamnée de fait à l’emprisonnement puisse bénéficier de cette mesure. [^3]
[12] He thus held that R. v. Giroux, supra, a case in which the offender was unable to pay the fine and the conditional sentence in default of payment of the fine was imposed immediately, was rightly decided.
[13] A subsequent decision of the Quebec Court of Appeal, R. c. Bisson, [2000] J.Q. No. 3273 followed this line of reasoning and affirmed that a conditional sentence may be imposed in default of payment of a mandatory minimum fine where the convicted party is given no time to pay the fine.
[14] In this province, the availability of conditional sentences in default of payment of fines was considered by Blenus Wright J. in R. v. Lettroy (2000), 2000 CanLII 22341 (ON SC), 47 O.R. (3d) 517. The accused pleaded guilty to income tax evasion. He was fined $218,678, an amount equivalent to the tax evaded, more than the minimum fine but less than the maximum stipulated by s. 239(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). He was given no time to pay and sentenced to 12 months in default of payment, to be served conditionally, together with 12 months probation. The Crown appealed on the ground that the accused should have been given time to pay and that a conditional sentence was not available for a term of imprisonment in default of payment of a fine. Blenus Wright J. allowed the Crown's appeal on the ground (at p. 520) that “[b]y giving no time to pay the fine the judge effectively wiped out the mandatory fine provisions” of the Income Tax Act.
[15] Blenus Wright J. held at p. 521 that a conditional sentence was not available:
The term of imprisonment in default of payment of a fine is made with reference to the future and in relation to the possibility that the fine will not be paid. The imprisonment in default of payment of the fine does not relate to the conviction for the offence of tax evasion but relates to the failure to pay the sentence of a fine. Therefore, in my view the imprisonment in default of payment of the fine was not part of the sentence.
[16] Blenus Wright J. allowed the Crown’s appeal, but in view of the respondent’s lack of means to pay the fine, he substituted a reduced fine of 50% of the amount of tax evaded, gave the respondent a year to pay the fine, and set aside the term of imprisonment in default, expressly noting that the Crown should be left to its civil remedies to collect the fine if it were not paid.
[17] In my view, in the circumstances of the present case, the trial judge did have the discretion to impose a conditional sentence in default of payment of the mandatory minimum fine. I would adopt the analysis of the Quebec Court of Appeal that it is legally possible to impose a conditional sentence in default of payment of a fine where the offender is given no time to pay.
[18] I agree with the Quebec Court of Appeal that there is a difference between imposing an immediate sentence of imprisonment in default of payment of a fine with no time to pay the fine, and imposing a conditional sentence in default of payment where the offender is given time to pay. Where no time is given to pay the fine, the court has determined, then and there, that the appropriate sanction for the offender's conduct is either immediate payment or immediate imprisonment. As the legal and practical effect of the sentence is to send the offender directly to jail, it seems to me that the court is imposing a sentence of imprisonment and I see no reason in law to eliminate the possibility of ordering that the sentence be served in the community pursuant to the terms of s. 742.1 of the Criminal Code.
[19] As well as being supportable in law, this analysis also has the practical advantage of affording judges a desirable measure of flexibility to arrive at an appropriate sentence. The circumstances of the present case prove the point. The trial judge concluded that in view of his limited means, the respondent was unable to pay the required fine. The trial judge also concluded that given the respondent’s minimal level of involvement in smuggling and his personal circumstances, a sentence of incarceration was not appropriate. The trial judge was required to impose a fine, but he was not required to impose a term of imprisonment in default of payment as s. 240(4) of the Excise Act is discretionary. The imposition of a fine of $9,600 that could not and would not be paid would amount to a hollow sentence that would fail to adequately sanction the respondent's wrongful conduct. The imposition of a conditional sentence in default of immediate payment of the fine allowed the trial judge to arrive at a sentence that respected the letter of the law, was closely tailored to the circumstances of the offender, and gave appropriate emphasis to the goals of deterrence and retribution.
[20] I would, however, add the following caveat. I agree with the views expressed by Blenus Wright J. in Lettroy to the following extent. First, it is well established that ordinarily, a convicted party should be given time to pay a fine. The circumstances in which no time is given to pay a fine are bound to be exceptional. Second, sentencing judges should avoid dispositions that in effect evade Parliament's direction that for certain offences, mandatory fines must be imposed. It hardly needs to be said that sentencing judges must respect the will of Parliament. If a sentencing judge were to impose a fine, give no time to pay and impose a conditional sentence in default of payment as a means of avoiding the impact of the mandatory fine, such a sentence would amount to an improper exercise of the sentencing judge's discretion. Where it is doubtful that the mandatory fine will be paid, and where the circumstances of the offence or the offender do not justify a period of imprisonment in default, imposition of the fine with time to pay and without a period of imprisonment in default will often be the appropriate sentence.
[21] For the reasons I have given, I cannot accept the appellant's submission that the sentence imposed here effectively defeated Parliament's intention that a minimum fine be imposed. In my view, the trial judge did his best to impose a sentence that appropriately sanctioned the respondent's wrongful conduct in keeping with the statutory scheme and applicable legal principles and in a manner consistent with the respondent's level of criminal involvement and personal circumstances.
[22] Finally, I note that s. s. 734 of the Criminal Code, providing for the calculation of the term of imprisonment to be imposed in default of payment of a fine, has no application to the circumstances of this case. Accordingly, I do not address here the relevance or applicability of conditional sentences under that scheme, leaving that question to another day when the issue does arise.
CONCLUSION
[23] For these reasons, I would grant leave to appeal and dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree J.M. Simmons J.A.”
DOHERTY J.A. (Dissenting):
[24] I have read the persuasive reasons of my colleague, Sharpe J.A. I come to a different conclusion. As I read s. 742.1 of the Criminal Code, a conditional sentence is not available where a term of imprisonment is imposed upon default of the payment of a fine.
I
[25] The respondent was convicted under the Excise Act, R.S.C. 1985, c. E-14. Section 34(2) of the Interpretation Act, R.S.C. 1985, c. I-21 makes the provisions of the Criminal Code applicable to prosecutions under the Excise Act “except to the extent that the enactment otherwise provides”. There is nothing in the Excise Act about conditional sentences. Section 742.1 of the Criminal Code, therefore, governs the availability of conditional sentences for persons convicted under the Excise Act.
[26] Section 742.1 reads:
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3. [Emphasis added.]
[27] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at 93, Lamer C.J.C. identified three prerequisites to the availability of a conditional sentence:
(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
(2) the court must impose a term of imprisonment of less than two years;
(3) the safety of the community would not be endangered by the offender serving the sentence in the community; …
[28] It is the second of these prerequisites which is germane to this appeal. That requirement flows directly from the words of s. 742.1(a). A conditional sentence is only available where the court “imposes a sentence of imprisonment of less than two years”.
[29] Section 742.1(a) sets the standard by which those offenders who are not candidates for a conditional sentence are identified: R. v. Proulx, supra, at pp. 96-98. Offenders for whom imprisonment is an inappropriate punishment and offenders for whom a penitentiary term is an appropriate punishment are not eligible for conditional sentences. Offenders who fall between these two categories, that is, offenders for whom a term of imprisonment of less than two years is an appropriate punishment are candidates for a conditional sentence. If the offender is eligible for a conditional sentence, the court must go on to determine, according to s. 742.1(b), whether a conditional sentence should be imposed.
[30] In R. v. Proulx, supra, at p. 98, the Chief Justice referred to the drawing of the distinction between offenders who were eligible for a conditional sentence and those who were not eligible as a “preliminary determination” to be made upon a consideration of the fundamental purpose and principles of sentencing to the extent necessary to “narrow the range of sentence” by placing the offender in one of the three categories described above.
[31] When the “preliminary determination” described by the Chief Justice is made in this case, the respondent falls into one of the categories of offenders for whom a conditional sentence is not available. The trial judge found, and it is not challenged on appeal, that imprisonment was not an appropriate punishment. He indicated that but for the minimum fine, he would have imposed a suspended sentence. Once the trial judge decided that a minimum fine was the appropriate sentence and that imprisonment was an inappropriate disposition, s. 742.1 was no longer a sentencing option.
[32] I cannot agree that the imposition of a term of imprisonment in default of payment of a fine is the same thing as the imposition of a term of imprisonment as a sanction for the commission of an offence. Imprisonment as punishment for the commission of an offence is appropriate only where a blending of the principles of sentencing to achieve the fundamental purpose of sentencing described in s. 718 of the Criminal Code compels the conclusion that imprisonment is the correct sanction. Imprisonment imposed for failure to pay a fine is not determined by reference to those principles of sentencing or the fundamental purpose of sentencing, but rather by reference to the need to enforce payment of the monetary penalty imposed by the court. It has long been recognized that imprisonment in default of payment of a fine is not punishment for the offence, but is a means of enforcing the punishment which is the fine: R. c. Savard (2000), 2000 CanLII 6767 (QC CA), 38 C.R. (5th) 152 at paras. 19, 36 (Que. C.A.); R. v. Lettroy (2000), 2000 CanLII 22341 (ON SC), 47 O.R. (3d) 517 at 522 (Ont. S.C.J.); R. v. Tomlinson (1971), 1971 CanLII 1198 (BC SC), 2 C.C.C. (2d) 97 at 98 (B.C.S.C.); Regimbald v. Chong Chow (1925), 38 Que. K.B. 440 at 445 (K.B.).
[33] The enforcement nature of a term of imprisonment imposed for non-payment of a fine is made clear by several provisions of the Criminal Code. Sections 734(4) and 734(5) provide that the period of incarceration to be served for default in payment of a fine is determined by the unpaid amount of the fine. [^4] Section 734.7 provides that except where no time is allowed to pay a fine, the offender should be imprisoned for non-payment of the fine only where the other enforcement mechanisms set out in the Criminal Code (s. 734.5, s. 734.6) are inappropriate, or the offender has refused without reasonable excuse to pay the fine. [^5] Section 734.8 directs that an offender who has been imprisoned for not paying a fine may have that term of imprisonment reduced or eliminated entirely by paying part or all of the fine. Finally, s. 787(2) and s. 809 recognize that imprisonment may be imposed for non-payment of monetary orders other than fines (eg. costs). Clearly, imprisonment in these circumstances has nothing to do with sentencing the offender for an offence and everything to do with enforcing court orders.
[34] The enforcement purpose behind the imposition of a jail term for non-payment of a fine does not change depending on whether the offender is given time to pay the fine. In either situation, the punishment deemed appropriate for the offence is the fine. Where no time is given to pay the fine, that is because it is deemed appropriate to enforce immediate payment of the fine with the threat of a jail term. Because imprisonment is a means of enforcing the fine and not an alternative sanction for the commission of the crime, it is wrong in principle to impose a default prison term with no time to pay the fine absent proof that an offender has the ability to pay the fine immediately: R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 9 C.C.C. (2d) 390 at 397 (B.C.C.A.); R. v. Zink (1992), 1992 CanLII 228 (BC CA), 13 B.C.A.C. 241 (C.A.).
[35] Counsel for the respondent referred to s. 732 of the Criminal Code in support of her submission that a sentence of imprisonment in default of payment of a fine is still “a sentence of imprisonment” and, therefore, one for which a conditional sentence may be imposed under s. 742.1. Section 732 provides for intermittent sentences and reads in part:
Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of a payment of a fine or otherwise, …
[36] I think the presence of the phrase “whether in default of payment of a fine or otherwise” in s. 732 and the absence of that phrase in s. 742.1(a) supports the conclusion that conditional sentences are not available when imprisonment is imposed for failure to pay a fine.
II
[37] My colleague writes that his interpretation of s. 742.1 affords judges “a desired measure of flexibility to arrive at an appropriate sentence”. I agree wholeheartedly that flexibility is important when judges are trying to tailor a sentence to the offence and the offender. With respect, however, I think that my colleague’s interpretation of s. 742.1 will lead to inappropriate sentences.
[38] A conditional sentence is a term of imprisonment, albeit one which is served in the community. Most offenders who are subject to a conditional sentence undergo substantial deprivation of their liberty. The relatively recent overhaul of the Criminal Code provisions relating to fines recognizes that as a matter of principle imprisonment for non-payment of fines should be used as a last resort, or where there is no reasonable excuse for non-payment. Parliament envisioned resort to imprisonment primarily, if not exclusively, in situations where the offender who had defaulted on payment had the means to pay. The slamming of the jail door was seen as an incentive to make the offender who had the means to pay the fine do so.
[39] I think the principle that limits resort to imprisonment as a means of enforcing fines has equal application to imprisonment served in custody or in the community. In either case, the offender should not suffer a deprivation of his or her liberty for non-payment of a fine except where other enforcement techniques are inappropriate or the offender has wilfully refused to pay the fine. As I see it, the real danger in reading s. 742.1 to permit conditional sentences for non-payment of fines is that trial judges will resort to conditional sentences in circumstances where they would not impose a custodial term of imprisonment for non-payment of fines. This will result in unwarranted reliance on imprisonment as a means of enforcing the payment of fines.
[40] This case provides an example of the inappropriate use of imprisonment to enforce the payment of a fine. The trial judge was satisfied that the crime committed by the respondent did not call for imprisonment. He was also satisfied that the respondent did not have the ability to pay the minimum fine. Despite these two findings, the trial judge imposed a conditional sentence, which included a “house arrest” provision, for non-payment of the fine and required that the fine be paid immediately. [^6] By doing so, he effectively imposed a term of imprisonment, albeit within the community, not as punishment for the crime, but because the respondent did not pay a fine that he was unable to pay. I think it is just as much an error in principle to impose a conditional sentence in these circumstances as it would have been to impose a custodial sentence. Both amount to deprivation of liberty, not as a fit sanction for the offence committed, but because the offender is unable to pay a fine. Economic imprisonment whether in jail or in the community is offensive to the present provisions of the Criminal Code relating to fines. The judge’s interpretation of s. 742.1 led him to impose an inappropriate sentence in this case. I do not think he would have imposed a custodial term of imprisonment had that been the only imprisonment option open to him.
[41] The absence of any reference to imprisonment upon default of payment of the fine in s. 742.1 is consistent with Parliament’s determination that imprisonment should not be used as a means of enforcing fines save in very limited circumstances. In those limited circumstances, custodial imprisonment is better suited to achieve the enforcement purpose than non-custodial imprisonment.
III
[42] The trial judge was faced with a difficult sentencing problem. As he observed, his difficulty stemmed in large measure from the absence of any approved fine option programs in Ontario. Those programs permit an offender to discharge his fine obligation by performing work in programs authorized by the Lieutenant Governor in Council and are clearly aimed at offenders of limited means for whom a fine is the appropriate disposition: Criminal Code, s. 736.
[43] In the absence of a fine option program, the trial judge had two options. He could have declined to make any order for imprisonment upon default of payment of the fine and left it to the Crown to enforce the fine through other enforcement mechanisms available to it. This is an appropriate disposition where there is no realistic possibility that an offender can pay the appropriate fine within a reasonable time: R. v. Natrall, supra, at pp. 397-98. [^7]
[44] The trial judge also could have imposed a term of imprisonment upon default of payment of the fine, but allowed the respondent a reasonable time to pay that fine. Had he chosen this option, the trial judge could have provided that certain modest minimum payments were to be made within the allotted time: Criminal Code, s. 734.1. If the fine was not paid in the allotted time, the trial judge could have considered an application to extend the time for payment: Criminal Code, s. 734.3. If the respondent did not seek an extension and defaulted on the payment of the fine, the trial judge would then have had to determine whether to issue a warrant for the committal of the respondent. In making that decision, he would have looked at s. 734.7 which makes imprisonment the enforcement mechanism of last resort. If the respondent had made genuine efforts to pay as much of the fine as he reasonably could and was not able to pay the remainder of the fine, imprisonment would be an inappropriate order under s. 734.7.
[45] At the sentencing proceedings, the trial judge did not make any specific inquiry into the respondent’s ability to pay the minimum fine. On appeal, the Crown counsel argued that the evidence did not support the conclusion that the respondent was unable to pay the fine. While a more detailed inquiry into the respondent’s financial means would have been helpful, the evidence at trial did establish that the respondent had a very limited income and was raising a teenaged daughter.
[46] As the conditional sentence has been served, I do not think that anything would be gained at this late juncture by a more detailed inquiry into the respondent’s ability to pay the fine. Justice is best served by accepting the trial judge’s conclusion that the respondent did not have the ability to pay the fine in the reasonably foreseeable future. Considered in that light, there should have been no order for imprisonment upon default of payment of the fine. I would vary the sentence by deleting the term of imprisonment imposed on default. The Crown may resort to the other enforcement mechanisms available to it to try to collect the fine.
“D.H. Doherty J.A.”
RELEASED: December 12, 2001
[^1] [TRANSLATION] “[w]hen the law prescribes a minimum fine … be it appropriate or excessive and beyond the means of the offender, the court must consider the period allotted for payment, the terms of payment, and if necessary, the provision for imprisonment in default of payment.”
[^2] [TRANSLATION] “in the event … that it seemed to the court that the accused could not pay the heavy fine, a custodial sentence imposed in default of payment could hardly be regarded as ‘encouragement to pay the fine’, for in reality, this imprisonment would constitute the ‘penalty’”.
[^3] [TRANSLATION] “[It] would be compatible with the general principle governing the interpretation of statutes … that the immediate committal of the offender who is incapable of paying the fine may be covered by s. 742.1 CC; it would not be inconsistent with general sentencing principles for the person who has in effect been sentenced to a term of imprisonment to be able to benefit from this measure.”
[^4] As my colleague points out, these sections of the Criminal Code are not applicable to a fine imposed under the Excise Act because that Act provides for a maximum term of imprisonment upon default of payment of the fine: See s. 734(8). However, I think it is helpful to look at these sections as informing the enforcement purpose underlying the imposition of imprisonment upon failure to pay a fine.
[^5] Presumably, if no time is allowed to pay the fine, the determination has been made that the offender has the ability to pay the fine immediately. Imprisonment for non-payment is, therefore, appropriate.
[^6] In fairness to the trial judge, he ordered the fine paid immediately at the request of counsel for the respondent.
[^7] Under the relevant provisions of the Criminal Code, the term of imprisonment, if any, to be served is fixed by a formula at the time of committal and not when the sentence is imposed. These provisions do not apply here. See supra, note 1.