Criminal Code of Canada - section 462.37(5) - Fine option program not available to offender

section 462.37(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that section 736, which pertains to the payment of fines, does not apply to offenders who are fined under subsection (3).

SECTION WORDING

462.37(5) Section 736 does not apply to an offender against whom a fine is imposed pursuant to subsection (3).

EXPLANATION

Section 462.37(5) of the Criminal Code of Canada is an exemption clause that deals with the imposition of a fine on an offender. The section states that section 736 of the Criminal Code, which deals with the default payment of fines, does not apply to an offender against whom a fine is imposed pursuant to subsection (3). Subsection (3) of Section 462.37 deals with the imposition of a fine on an individual who commits a serious offense, such as drug trafficking, fraud, or money laundering. It allows the court to impose a fine that is equal to or greater than the value of the property or proceeds obtained by the offender as a result of the offense. In such cases, the court may waive the default payment provision under section 736 of the Criminal Code. Section 736 states that if an offender is unable to pay a fine, they can be imprisoned for a specified period of time. This implies that the offender has failed to comply with the order of the court, and imprisonment is imposed as an alternative to payment of the fine. The exemption clause in section 462.37(5) may be seen as a way to acknowledge that some offenders would be unable to pay large fines. In certain cases, the imposition of a fine may be seen as an adequate punishment, and the imposition of further punishment, such as imprisonment, would be unnecessary. In summary, Section 462.37(5) provides an exemption to section 736 of the Criminal Code for those offenders who are ordered to pay a fine under subsection (3) of Section 462.37, thereby allowing the court greater discretion in imposing punishment.

COMMENTARY

Section 462.37(5) of the Criminal Code of Canada is an interesting and important provision that limits the application of Section 736. Section 736 typically applies when a court imposes a fine as a penalty for an offence. Under Section 736, an offender can request time to pay the fine or apply for an extension of time to pay the fine. The application of Section 736 ensures that offenders are not unduly burdened by their financial obligations and that they are not punished disproportionately to their ability to pay. However, Section 462.37(5) carves out an exception to the broad application of Section 736. This means that if an offender is subject to a fine pursuant to subsection (3) of Section 462.37, they cannot avail themselves of the protections and benefits of Section 736. Subsection (3) of Section 462.37 deals with the imposition of a fine as part of a probation order. When an offender is subject to a probation order, the court may include conditions, such as a fine, as part of the order. The purpose of imposing a fine as part of a probation order is to incentivize compliance with the conditions of the probation order. The idea is that a financial penalty will motivate the offender to meet their obligations under the order. However, the exclusion of Section 736 protections for these offenders against whom a fine is imposed pursuant to subsection (3) can be problematic. It removes a safety net that is otherwise available to all offenders who are subject to fines. The concern is that it could lead to greater financial hardship for offenders who are already vulnerable and struggling to comply with the conditions of their probation order. It is possible that the exclusion of Section 736 protections for these offenders is intentional. The government may believe that the imposition of a fine as part of a probation order is an appropriate and sufficient way to motivate compliance. They may argue that the added financial burden will ultimately benefit the offender, as it will help them learn a lesson and avoid future criminal behavior. However, it is important to recognize that not all offenders are in the same position to pay fines and meet their obligations under a probation order. Some offenders may have limited financial resources or be facing other obstacles that make compliance difficult. In such cases, the lack of Section 736 protections could exacerbate financial hardship and make it even more difficult for offenders to comply with their probation order. Overall, while the exclusion of Section 736 protections for offenders subject to a fine pursuant to subsection (3) may serve a purpose, it is important to monitor its impact and ensure that it does not unfairly burden vulnerable offenders. Efforts should be made to ensure that the imposition of fines as part of probation orders is proportionate and that offenders are given the support they need to comply with their obligations. So, the provision of this section should be reviewed and revised if necessary to ensure that it does not create undue hardship for offenders.

STRATEGY

Section 462.37(5) of the Criminal Code of Canada states that the offender against whom a fine is imposed under subsection (3) is not subject to Section 736. This means that the offender cannot discharge the fine by serving a sentence in default of payment, as is usually the case for fines imposed under other sections of the Criminal Code. As such, the offender must pay the fine within the given timeframe, or face additional consequences. There are several strategic considerations when dealing with this section of the Criminal Code of Canada. Firstly, it is important to consider the financial standing of the offender. If the offender is unable to pay the fine due to financial difficulty, they may be forced to choose between paying the fine or serving a sentence in default of payment. In this scenario, it may be strategic to negotiate a payment plan or alternative payment arrangement with the offender, such as community service, to ensure that the fine is paid without causing undue hardship. Another strategic consideration is whether the fine amount is appropriate and proportional to the offence committed. In some cases, the fine may be excessive or unreasonable, and could be open to challenge on appeal. It may be strategic to seek legal advice to determine whether the fine is justified, and if not, to challenge the imposition of the fine. Furthermore, the use of fines as a penalty for criminal offences has been subject to criticism, particularly in cases where the offender is unable to pay the fine. Some have argued that this creates a two-tier justice system, where wealthy offenders can simply pay their way out of punishment, while those who are unable to afford the fines are punished more harshly. One strategy to address this issue is to advocate for alternative forms of punishment, such as community service or rehabilitation programs, that do not rely on financial means. Overall, dealing with Section 462.37(5) of the Criminal Code of Canada requires careful consideration of the individual circumstances of the offender and the offence committed. Strategies such as negotiating payment plans, challenging excessive fines, and advocating for alternative forms of punishment may be employed to ensure that justice is served in a fair and equitable manner for all.