section 734.8(2)

INTRODUCTION AND BRIEF DESCRIPTION

If a person can only partially pay a fine, their term of imprisonment can be reduced proportionally based on the amount paid.

SECTION WORDING

734.8(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.

EXPLANATION

Section 734.8(2) of the Criminal Code of Canada provides a guideline for reducing the term of imprisonment that an offender may have to serve when they default on the payment of a fine. This section applies in situations where the offender is unable to pay a fine that has been imposed by the court. In such cases, the court may order that the offender be imprisoned for a specified period - either in addition to or instead of paying the fine. This period of imprisonment is known as the term in default. The section provides that an offender can reduce their term in default by making a part payment of the fine. The reduction is determined by a mathematical formula that calculates the proportion of the fine paid compared to the total amount due. This proportion is then applied to the total number of days that the offender was originally sentenced to serve in default of payment of the fine. The result of this calculation is the number of days that the offender's term will be reduced by. For instance, if an offender was sentenced to serve 30 days in default of payment of a $300 fine, and they make a payment of $150 after five days of imprisonment, their term in default would be reduced by 50% (i.e., $150/$300), which is 15 days (i.e., 50% of 30 days). Therefore, the offender would only have to serve 15 more days in default of payment of the fine. Overall, this section of the Criminal Code of Canada provides a fair and practical way to reduce the burden of imprisonment for offenders who are unable to pay their fines in full. By allowing them to make part payments, the section promotes the rehabilitation of offenders and ensures that the administration of justice is just and equitable.

COMMENTARY

Section 734.8(2) of the Criminal Code of Canada deals with the issue of default imprisonment in cases where a fine has been imposed, but not paid. The section allows for reduction in the period of imprisonment, in the event that the offender pays a certain portion of the fine, before or after the execution of a warrant of committal. The aim of this provision is to ensure that the punishment imposed on offenders is proportional to their offense and ability to pay. The section acknowledges that not all offenders may have the financial means to pay their fines immediately, and that imprisonment could be an undue burden in such cases. Thus, by allowing for reduction in default imprisonment, the provision seeks to provide offenders with a viable alternative to incarceration and prevent disproportionate punishment. The formula used to calculate the reduction in default imprisonment is straightforward. The reduction is equal to the number of days the partial payment bears to the total penalty, multiplied by the total number of days of the term of imprisonment. For instance, if an offender is required to pay a fine of $1,000 and the term of default imprisonment is 100 days, the reduction in imprisonment days would be calculated as follows: ($500/$1,000) x 100 = 50 days reduction in default imprisonment. Thus, the offender's term of imprisonment would be reduced by 50 days, upon payment of half of the fine. It is worth noting that the provision does not apply to cases where the offender has chosen to serve a term of imprisonment, instead of paying the fine. In such cases, the offender is subject to the full period of the term of imprisonment, without any possibility of reduction. Overall, section 734.8(2) appears to be a reasonable and justifiable provision, aimed at ensuring that the punishment imposed on offenders is proportionate to their ability to pay. The provision strikes a balance between the need for punishment and the need to avoid disproportionate suffering of criminal offenders. By providing an incentive for offenders to pay their fines, the provision may also promote compliance with the law and enhance the effectiveness of criminal justice.

STRATEGY

Section 734.8(2) of the Criminal Code of Canada sets out a mechanism to reduce the term of imprisonment in default of payment of a fine if the offender makes a partial payment towards the fine. This provision is important because it allows an offender who cannot afford to pay the entire fine to avoid imprisonment by paying a portion of the fine. However, it is essential for lawyers and litigants to consider various strategic considerations when dealing with this section to ensure that their interests are best served. One of the key strategic considerations is the timing of the partial payment. The reduced term of imprisonment applies whether the payment was made before or after the execution of a warrant of committal. Therefore, an offender who can only afford to make a partial payment should do so as early as possible to minimize the period of incarceration. However, if an offender decides to make a partial payment after the execution of a warrant of committal, it may be beneficial to time the payment in a way that maximizes the reduction in the term of imprisonment. For example, if an offender is sentenced to a 60-day imprisonment term for non-payment of a $1,200 fine and has already served 30 days, a partial payment of $600 would reduce the term of imprisonment by 30 days, resulting in immediate release. Another strategic consideration is the amount of the partial payment. the term of imprisonment is 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. Therefore, the larger the partial payment, the greater the reduction in the term of imprisonment. For example, if an offender owes a $500 fine and is sentenced to a 30-day imprisonment term, a partial payment of $250 would reduce the term of imprisonment by 15 days, while a partial payment of $400 would reduce it by 24 days. Therefore, if an offender can afford to make a larger partial payment, it may be advantageous to do so. Moreover, it is essential to consider whether an offender has any outstanding warrants or criminal charges that could lead to additional imprisonment. If an offender has other charges that could result in imprisonment, it may not be strategic to make a partial payment as it may be better to keep the offender incarcerated until all charges are dealt with. However, if an offender does not have any outstanding charges and cannot afford to pay the entire fine, it may be beneficial to make a partial payment to avoid prolonged incarceration. In addition, it is vital to consider the impact of a conviction on an offender's future employment prospects, immigration status, and reputation. A criminal record could have significant consequences for an offender's ability to find employment and travel internationally. Therefore, it may be strategic to negotiate a payment plan with the court or seek alternative sentencing options to avoid a criminal record. In conclusion, Section 734.8(2) of the Criminal Code of Canada provides an important mechanism to reduce the term of imprisonment in default of payment of a fine. However, strategic considerations such as timing, amount of partial payment, outstanding warrants or charges, and long-term consequences of a conviction must be carefully assessed to determine the best course of action. Lawyers and litigants must consider all relevant factors to ensure that their clients' interests are best served.