Canadian Criminal Sentencing/Available Sentences/Fines

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General Principles[edit]

Fines are a form of financial punishment available as a sentencing option for a judge.[1] A fine is available where the court believes that the accused is "able to pay" the fine[2] and where a pecuniary punishment is considered proportionate to the offence and offender. This focus on ability to pay, found in s. 734(2), prevents "offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment."[3]

The burden is upon the party seeking the fine to prove that the offender has the ability to pay on a balance of probabilities.[4] The party does not need to identify or locate the specific assets available, rather "may rely on indirect evidence" to prove an ability to pay.[5]

Absent evidence to the contrary, the court may infer an ability to pay where the offender has been in "receipt of illegally-obtained funds". This must take into account the "amount of funds acquired" and "the length of time that has passed between the acquisition of the funds and the imposition of sentence."[6]

To issue a fine a judge must order:

  1. an amount to be paid
  2. the mode of payment
  3. the time(s) that the fine should be paid

The judge may add further requirements as seen fit.

If the offender fails to pay, it is on the offender to show proof that they are unable to pay in the circumstances.[7]


  1. s. 734; 716
  2. 734(2)
  3. R. v. Topp, 2011 SCC 43
  4. R v Topp
  5. R v Topp
  6. R v Topp
  7. R. v. Desjardins, 1996 NBCA; see also R. v. Wu, [2003] 3 SCR 530

Default[edit]

Where an offender has a fine imposed by the court, the court may order that a period of jail time in default may be substituted for the fine:

734.

...

Meaning of default of payment
(3) For the purposes of this section and sections 734.1 to 737, a person is in default of payment of a fine if the fine has not been paid in full by the time set out in the order made under section 734.1.

Imprisonment in default of payment
(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5), shall be deemed to be imposed in default of payment of the fine.

Determination of term
(5) The term of imprisonment referred to in subsection (4) is the lesser of

(a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which
(i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and
(ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and
(b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six months in the case of a summary conviction offence.

...

Warrant of committal
734.7 (1) Where time has been allowed for payment of a fine, the court shall not issue a warrant of committal in default of payment of the fine

(a) until the expiration of the time allowed for payment of the fine in full; and
(b) unless the court is satisfied
(i) that the mechanisms provided by sections 734.5 and 734.6 are not appropriate in the circumstances, or
(ii) that the offender has, without reasonable excuse, refused to pay the fine or discharge it under section 736.

Reasons for committal
(2) Where no time has been allowed for payment of a fine and a warrant committing the offender to prison for default of payment of the fine is issued, the court shall state in the warrant the reason for immediate committal.

Period of imprisonment
(2.1) The period of imprisonment in default of payment of the fine shall be specified in a warrant of committal referred to in subsection (1) or (2).

...

Effect of imprisonment
(4) The imprisonment of an offender for default of payment of a fine terminates the operation of sections 734.5 and 734.6 in relation to that fine.

1995, c. 22, s. 6; 1999, c. 5, s. 35.

Definition of “penalty”
734.8 (1) In this section, “penalty” means the aggregate of

(a) the fine, and
(b) the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection 734(7).

Reduction of imprisonment on part payment
(2) The term of imprisonment in default of payment of a fine shall, on payment of a part of the penalty, whether the payment was made before or after the execution of a warrant of committal, be reduced by the number of days that bears the same proportion to the number of days in the term as the part paid bears to the total penalty.

Minimum that can be accepted
(3) No amount offered in part payment of a penalty shall be accepted after the execution of a warrant of committal unless it is sufficient to secure a reduction of sentence of one day, or a whole number multiple of one day, and no part payment shall be accepted until any fee that is payable in respect of the warrant or its execution has been paid.

To whom payment made
(4) Payment may be made under this section to the person that the Attorney General directs or, if the offender is imprisoned, to the person who has lawful custody of the prisoner or to any other person that the Attorney General directs.

Application of money paid
(5) A payment under this section shall be applied firstly to the payment in full of costs and charges, secondly to the payment in full of any victim surcharge imposed under section 737, and then to payment of any part of the fine that remains unpaid.

1995, c. 22, s. 6; 1999, c. 5, s. 36, c. 25, s. 19(Preamble).

...

Punishment
787.

...

Imprisonment in default where not otherwise specified
(2) Where the imposition of a fine or the making of an order for the payment of money is authorized by law, but the law does not provide that imprisonment may be imposed in default of payment of the fine or compliance with the order, the court may order that in default of payment of the fine or compliance with the order, as the case may be, the defendant shall be imprisoned for a term not exceeding six months.

...

R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44.

CCC

Default time can be imposed in situations such as:

  • default of fine instead of forfeiture under s. 462.37 (1)

Victim Fine Surcharge[edit]

According to section 737, an "offender who is convicted or discharged...shall pay a victim surcharge". The amount will be either (1) 15% of the fine imposed; or (2) $50 for summary offences or $100 for indictable offences.[1] The fine is presumed payable immediately unless the court is satified that time is needed to pay.

Exception
Under s. 737(5), "[w]hen the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender" from paying the fine. The court must give reasons for this exemption.[2] If no request is made, the fine is presumed to be imposed.[3]

  1. s.737(2)
  2. s.737(6)
  3. R. v. Tellier, 2000 ABCA 219 [1]