Criminal Code of Canada - section 734(5)

section 734(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the calculation of the term of imprisonment for defaulting on a fine, based on the unpaid amount and provincial minimum hourly wage.

SECTION WORDING

734(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.

EXPLANATION

Section 734(5) of the Criminal Code of Canada stipulates the term of imprisonment for an offender who defaults on payment of a fine. When an offender does not pay a fine as ordered by the court, they can be imprisoned for a specific period. The section outlines the factors and formula that determine the length of the imprisonment in such a case. According to the section, the term of imprisonment should be the lesser of two options. The first option is the number of days that corresponds to a fraction calculated using the unpaid fine, plus the total costs and charges of imprisonment. This fraction comprises a numerator and a denominator, where the numerator is the total amount of the unpaid fine and imprisonment costs, while the denominator is eight times the provincial minimum hourly wage at the time of default. The second option is either the maximum term of imprisonment that the court can impose on conviction or five years for an indictable offence and six months for a summary conviction offence. This clause ensures that the offender cannot be incarcerated beyond the maximum sentence, even if they default on fines. This section ensures that offenders who default on fines receive an appropriate term of imprisonment that corresponds to their inability to pay the fine and imprisonment costs. The formula used ensures that the term of imprisonment is proportional to the offender's ability to pay, and that they cannot be incarcerated beyond what the court has the power to impose. Thus, this section provides clarity and transparency on the length of imprisonment for offenders who default on fines.

COMMENTARY

Section 734(5) of the Criminal Code of Canada establishes the term of imprisonment for those who default on the payment of a fine. The provision sets out a formula for determining the number of days that corresponds to a fraction of the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison. The formula takes into account the provincial minimum hourly wage at the time of default and restricts the term of imprisonment to the lesser of the calculated number of days and the maximum term of imprisonment that the court could itself impose on conviction. This provision serves an important purpose in ensuring that individuals who are unable to pay their fines are not subjected to disproportionate and unjustified periods of imprisonment. It recognizes that the imposition of a fine is not always an effective means of punishment and that some individuals may lack the means to pay the amount in full. By limiting the term of imprisonment according to a formula that takes into account the defaulter's ability to pay, the provision seeks to avoid penalizing individuals for their financial circumstances. The use of the provincial minimum hourly wage as a factor in the formula is particularly noteworthy. This reflects a recognition that the ability to pay fines is linked to one's income and that the cost of living varies across different jurisdictions. By tying the calculation of the term of imprisonment to the local wage level, the provision seeks to ensure that the consequences of defaulting on a fine are proportionate to the offender's means. The provision's emphasis on avoiding excessive periods of imprisonment is consistent with broader trends in Canadian criminal law that seek to limit the use of incarceration as a punishment. The principle of proportionality, which requires that the punishment fit the crime, is central to this approach. By setting out a formula for determining the term of imprisonment that reflects the offender's ability to pay, the provision seeks to ensure that the punishment for defaulting on a fine is commensurate with the seriousness of the offence. However, the provision is not without limitations. For example, it may not fully address concerns about financial hardship in cases where the unpaid amount is substantial or where the defaulter has multiple outstanding fines. In such cases, the term of imprisonment may still exceed what is proportionate given the offender's means. Moreover, the calculation of the term of imprisonment may be subject to errors or inconsistencies in the information used to determine the local minimum wage, the costs of committal, and other variables. Overall, Section 734(5) of the Criminal Code of Canada represents an important attempt to ensure that the punishment for defaulting on a fine is fair and proportional. By limiting the term of imprisonment based on the defaulter's ability to pay, the provision seeks to avoid penalizing individuals for their financial circumstances. While the provision may not fully address all concerns about disproportionate periods of imprisonment, it reflects a recognition that the use of incarceration as a punishment should be carefully calibrated to ensure that offenders are punished in a manner that is commensurate with the harm caused by their conduct.

STRATEGY

Section 734(5) of the Criminal Code of Canada provides the court with the discretion to order imprisonment in default of payment of a fine. The section causes a number of strategic considerations for those dealing with the Criminal Code. This essay highlights these strategic considerations, and discusses the strategies that could be employed to address them. Firstly, the need to balance the punishment with the offence is a significant strategic consideration when dealing with this section. Imprisonment in default of payment of a fine can be a harsh penalty, particularly for low-income earners who are unable to pay the fine. Therefore, the court needs to ensure that the punishment they impose is proportionate to the offence committed, and that they consider the offender's financial situation when imposing the sentence. Secondly, the court's decision could be challenged on appeal. This is another strategic consideration that should be taken under advisement. If the court imposes a sentence that is perceived as too harsh, or has not considered the offender's unique circumstances, the sentence could be challenged on appeal. It is imperative to ensure that the sentence is fair, just and reasonable and that the court has taken into account the offender's financial situation and unique circumstances. Thirdly, there are financial considerations for the offender. When a sentence of imprisonment is imposed in default of payment of a fine, the offender could lose their job, housing, and other assets. The offender may also be unable to pay for legal representation to appeal their case. This is a significant financial burden that will require careful consideration when dealing with this section. Fourthly, the court needs to consider the practical implications of imposing a sentence of imprisonment in default of payment of a fine. This includes the cost to the taxpayer of incarcerating the offender, the safety of the offender in prison, and the potential impact on prisons that could become overcrowded with people serving sentences in default of payment of fines. A strategy to mitigate these strategic considerations could be the provision of alternative sentencing options. The court may consider alternatives such as community service, restitution, or increased fines in lieu of imprisonment. At the same time, the court may impose a conditional sentence, which would allow the offender to remain in the community and avoid imprisonment in default of payment of a fine. Another strategy could be to provide the offender with an extension of time to pay the fine. If the offender has a genuine inability to pay, the court may offer them more time to pay, or the court may consider reducing the amount of the outstanding fine based on their financial situation. In conclusion, dealing with Section 734(5) of the Criminal Code of Canada requires careful consideration of several strategic considerations. While imprisonment in default of payment of a fine may be necessary in some cases, alternative solutions should also be considered to ensure that the punishment is proportionate to the crime committed and that the offender's financial situation and unique circumstances are taken into account. Ultimately, the court must balance the interests of society and the rights of defendants in determining an appropriate sentence.