Court of Appeal for Ontario

Citation: R. v. Le, 2007 ONCA 675 Date: 2007-10-03 Docket: C45821

Before: ROSENBERG, GILLESE and MacFARLAND JJ.A.

Between:

Her Majesty the Queen Respondent

and

Tuan Van Le Appellant

Counsel: Tuan Van Le in Person with interpreter Nicholas A. Xyniss duty counsel Nicholas E. Devlin for the respondent

Heard: September 17, 2007 On appeal from sentence imposed by Justice Stephen Glithero of the Superior Court of Justice dated July 6, 2006.

E N D O R S E M E N T

[1] The only ground of appeal on this in-person appeal from sentence concerns the fine imposed by the trial judge pursuant to s. 462.37 of the Criminal Code. At trial, the appellant argued that this section was unconstitutional as violating ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. The appellant makes the same argument here. As interpreted by the Supreme Court of Canada in R. v. Lavigne (2006), 2006 SCC 10, 206 C.C.C. (3d) 449, ability to pay is not a factor to be considered in determining the fine under s. 462.37, but is a consideration in determining the time to be given to the offender to pay the fine and in determining whether a warrant should issue for non-payment. The section also gives a sentencing court a discretion whether or not to impose a fine and in determining the value of the property. The discretion is to be exercised in light of the evidence.

[2] In this case, the trial judge found the provisions to be constitutional. In doing so, he noted the paucity of evidence adduced by the offender on the impact of the provision on him. The trial judge ultimately imposed a fine of $119,700 and gave the appellant five years in which to pay. He also informed the appellant that the time to pay could be extended if the appellant had a reasonable excuse for non-payment. The trial judge imposed the minimum two-year sentence in default of payment of the fine.

[3] While we tend to the view that the trial judge properly ruled on the constitutional issue, we need not finally decide that issue. In our view, this in-person appeal is not an appropriate case to determine the constitutionality of this provision. There was little, if any, factual foundation for the constitutional argument and the appellant adduced no evidence as to how the imposition of the fine would be grossly disproportionate in his case or in reasonable hypothetical circumstances. This kind of important issue should not be determined in a factual vacuum.

[4] Accordingly, leave to appeal sentence is refused.

Signed: "M. Rosenberg J.A." "E.E. Gillese J.A." "J. MacFarland J.A."