Criminal Code of Canada - section 718.3(3) - Imprisonment in default where term not specified

section 718.3(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section limits the length of imprisonment that may be imposed in default of payment of a fine.

SECTION WORDING

718.3(3) Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of imprisonment in default of payment of the fine is not specified in the enactment that prescribes the punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed the term of imprisonment that is prescribed in respect of the offence.

EXPLANATION

Section 718.3(3) of the Criminal Code of Canada deals with the punishment for an offence that is punishable with both imprisonment and a fine. In such cases, the imprisonment that may be imposed in default of payment of the fine shall not exceed the term of imprisonment that is prescribed for the offence. This means that if an accused is unable to pay the fine related to the offence for which they have been convicted, they will be required to serve a term of imprisonment, or a jail sentence, instead of paying the fine. For example, if the punishment for an offence is a fine of $5,000 and a maximum jail term of two years, and the accused is unable to pay the fine, then their sentence may be reduced to serve a jail sentence of two years or less. Overall, this section is of significance as it ensures that a person's inability to pay a fine does not result in an excessive jail term. Rather, the jail term in default of payment of a fine must be restricted to the maximum term specified in the legislation that prescribes the punishment for the offence. This ensures that the punishment remains proportionate to the nature of the offence committed and does not excessively penalize those who are unable to pay their fines.

COMMENTARY

Section 718.3(3) of the Criminal Code of Canada is a provision that sets out limitations on the imposition of imprisonment as a punishment for a criminal offence where a fine and imprisonment are both available penalties. Specifically, the provision restricts the length of imprisonment that can be imposed in default of payment of the fine. It is an important provision that governs the way in which courts can impose sentences and the extent to which imprisonment can be used as a form of punishment. The purpose of section 718.3(3) is to ensure that any imprisonment imposed for failure to pay a fine is proportionate to the severity of the underlying offence and the punishment that is prescribed for it under the applicable legislation. It prevents courts from imposing excessive sentences that could result in unfairness to the accused. Specifically, the provision requires that the term of imprisonment imposed in default of payment of the fine cannot exceed the term of imprisonment that is prescribed for the offence. This provision is important because it ensures that the right to liberty, which is protected by section 7 of the Canadian Charter of Rights and Freedoms, is not unduly restricted. It recognizes that imprisonment is a serious penalty that should only be imposed in limited circumstances, and that alternatives to incarceration should be considered where appropriate. The provision therefore helps to ensure that sentences imposed by the courts are fair and proportional, and that the rights of the accused are protected. However, there have been criticisms of section 718.3(3). One criticism is that it may lead to disparities in sentencing, since the same offence could be punished differently depending on whether the accused is able to pay the fine. In other words, an accused who is unable to pay the fine may end up receiving a harsher sentence than someone who is able to pay the fine. This could be seen as unfair and contrary to the principles of equality before the law. Another criticism of section 718.3(3) is that it does not take into account the ability of the accused to pay the fine. In some cases, an accused may be unable to pay a fine due to financial hardship or other circumstances beyond their control. In such cases, it may be inappropriate to impose imprisonment as a punishment for non-payment of the fine. However, the provision does not allow for this consideration, and instead imposes a strict limit on the maximum length of imprisonment that can be imposed. Despite these criticisms, section 718.3(3) remains an important provision in the Criminal Code of Canada. It helps to ensure that the use of imprisonment as a form of punishment is proportionate to the severity of the offence committed, and that the rights of the accused are protected. However, as with any law, there is always room for improvement and refinement to ensure that it continues to be an effective and fair provision for both the accused and the wider community.

STRATEGY

Section 718.3(3) of the Criminal Code of Canada primarily deals with the imposition of imprisonment in default of payment of a fine. The section mandates that when an accused is convicted of an offence punishable with both a fine and imprisonment and the law does not specify a term of imprisonment in default of payment of the fine, the imprisonment that may be imposed shall not exceed the term of imprisonment prescribed in relation to the offence. This means that the court cannot impose a sentence of default imprisonment that is beyond the prescribed term of imprisonment for the offence if the accused fails to pay the fine imposed. Several strategic considerations must be taken into account by both the accused and their defense counsel when dealing with Section 718.3(3) of the Criminal Code of Canada. The following are some strategic considerations and strategies that can be employed when dealing with this section: 1. Financial status of the accused: When an accused is facing a fine and imprisonment, their financial status will be a significant factor in determining whether they can pay the fine and avoid the term of imprisonment. Defense counsel must conduct a detailed financial assessment of the accused and determine their ability to pay the fine and any legal costs. This assessment will help in determining whether the accused is likely to face imprisonment in default of payment of the fine. 2. Mitigating factors: The court must consider mitigating factors when determining the sentence to impose on the accused. Defense counsel must present all mitigating factors to the court, including the financial status of the accused, their previous criminal record, and any other relevant factors that will alleviate the severity of the sentence. 3. Plea bargaining: The accused may opt for a plea bargain, which will result in a reduction of the charges. Plea bargaining is an effective negotiating tool that can reduce the charge from a fine and imprisonment to only a fine, thereby avoiding the possibility of imprisonment in default of payment. 4. Alternative sentencing options: The court may consider alternative sentencing options other than imprisonment in default of payment of a fine. Such options include community service or suspended sentence, which may be more appropriate, especially for first-time offenders. 5. Payment plans: The accused may request the court for a payment plan that will allow them to pay the fine in installments. The court may consider such a request, especially if the accused can demonstrate a genuine inability to pay the fine in full. 6. Negotiating the term of imprisonment in default of payment: If the accused is unable to pay the fine, the defense counsel may negotiate the term of imprisonment in default with the prosecutor. Negotiating the term of imprisonment will help in reducing the sentence and avoiding the imposition of a severe sentence. 7. Appeal: If the accused is unhappy with the sentence imposed, they may opt to appeal the sentence. An appeal may result in a reduction of the sentence or a complete acquittal. In conclusion, dealing with Section 718.3(3) of the Criminal Code of Canada requires careful consideration of various factors. The financial status of the accused, mitigating factors, plea bargaining, alternative sentencing options, payment plans, negotiating the term of imprisonment, and appealing the sentence are some of the strategies that can be employed by defense counsel when dealing with this section. Effective use of these strategies can help in avoiding a harsh sentence for the accused, especially when facing imprisonment in default of payment of a fine.