section 787(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for imprisonment as a consequence for failure to pay a fine or comply with an order, up to a maximum of six months, when the law does not explicitly provide for imprisonment.

SECTION WORDING

787(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.

EXPLANATION

Section 787(2) of the Criminal Code of Canada outlines the circumstances under which a court may order imprisonment as a consequence of non-compliance with a fine or order for payment of money. This section is relevant in cases where the law permits the imposition of a fine or order for payment of money, but does not specify the consequences for non-payment or non-compliance. In such cases, the court is empowered to order imprisonment for a period not exceeding six months as a consequence of non-payment. This section reflects the principle that a person who is required to pay a fine or make a payment must do so, and failure to comply may result in criminal punishment. The imposition of a fine or order for payment of money is often used as a means of punishment or reparation in criminal cases, and is intended to serve as a deterrent against future offending behaviour. However, without the possibility of imprisonment for non-payment, the effectiveness of fines may be reduced, as individuals who are able to pay may choose not to do so without fear of consequences. It is important to note that in cases where the law does provide for imprisonment as a consequence of non-payment or non-compliance, this section would not be applicable. This provision is intended to fill a gap in the law where the possibility of imprisonment is not explicitly stated. Additionally, the term of imprisonment authorized by this section is limited to six months, which is a relatively short period compared to other criminal offences. This is intended to prevent the excessive use of incarceration as a consequence for non-payment or non-compliance with a fine or order for payment of money. Overall, section 787(2) of the Criminal Code of Canada is a provision that ensures that the imposition of a fine or order for payment of money is effective in achieving its intended purpose. It provides a measured response to non-payment or non-compliance, while recognizing the important role that fines play in the criminal justice system.

COMMENTARY

Section 787(2) of the Criminal Code of Canada outlines the provision for imprisonment in default of payment of fine or compliance with an order for the payment of money. The provision is applicable in cases where the law authorizes the imposition of a fine or an order for payment of money, but does not provide for the possibility of imprisonment in case of default of payment or compliance. The provision is meant to ensure that the administration of justice is effective and that offenders do not escape punishment or evade their financial obligations to society. In some cases, offenders may refuse or neglect to pay fines or make payment towards an order for the payment of money. Imprisonment serves as a last resort measure to compel compliance and ensure that the offender fulfills their obligations. Overall, the provision is an important aspect of criminal justice in Canada. Without it, many offenders would be able to avoid paying fines and would consequently not be held accountable for their actions. Imprisonment, as a means of enforcement of fines and monetary orders, ensures that there are consequences for criminal behavior and that the financial burden is not left solely on society. However, it is important to note that imprisonment should not be used excessively or arbitrarily. The Canadian Charter of Rights and Freedoms guarantees individuals the right to liberty and security of the person. Therefore, the imposition of imprisonment in default of payment of a fine or compliance with an order should be limited to cases where it is necessary and proportionate. Furthermore, the provision may disproportionately affect those who are socioeconomically disadvantaged. The inability to pay a fine or satisfy an order for payment of money may result from financial hardship, poverty, or other circumstances beyond an individual's control. It is important that the courts take into consideration an individual's financial circumstances and other relevant factors when deciding to impose imprisonment in default of payment. In conclusion, Section 787(2) of the Criminal Code of Canada is an important provision for ensuring the effectiveness of criminal justice and holding offenders accountable for their actions. However, it must be used judiciously and with consideration for an individual's circumstances to ensure that it does not result in unintended consequences such as disproportionate or unfair punishment.

STRATEGY

Section 787(2) of the Criminal Code of Canada can be a powerful tool in the hands of prosecutors or regulatory agencies seeking to enforce financial sanctions. It provides them with the ability to obtain compliance with these sanctions by threatening or imposing imprisonment for non-compliance. At the same time, the use of this provision raises a number of strategic considerations. One of the key strategic considerations is the potential impact that the imposition of imprisonment for non-payment of financial sanctions can have on the public's perception of the justice system. The use of imprisonment for debtors has fallen out of favor in recent years, and therefore, the use of this provision may be viewed as being at odds with modern legal philosophy. This can impact the success of cases in which the provision is used, as well as the public's trust in the justice system as a whole. Another important strategic consideration is the cost associated with imprisonment. Incarceration is expensive, and imprisonment for non-payment of fines or compliance orders can result in significant costs to the justice system, without necessarily achieving the desired objective of financial compliance. This is particularly true when the fines or compliance orders are of a relatively small amount. As such, it is important to consider the trade-offs between the cost of enforcing the financial sanctions through imprisonment and alternative methods of enforcement. Furthermore, there is a strategic consideration surrounding the use of this provision as a deterrent. While a provision of this nature might reduce non-compliance, it can also lead to individuals engaging in other types of criminal activities to pay the financial sanctions, such as fraud or theft. As such, this must be taken into account when deciding to use the provision, and how it will be implemented. In light of these strategic considerations, it is important for prosecutors and regulatory agencies to employ a number of strategies when seeking to impose imprisonment under Section 787(2). One strategy could be to limit the application of the provision to cases where the financial sanctions are of a significant amount. In such cases, the cost of imprisonment may be outweighed by the gains achieved through compliance with the financial sanctions. Another strategy could be to offer alternative methods of compliance to individuals who are unable to pay the financial sanctions. For instance, community service may be offered as a way to pay off the sanctions, thereby avoiding imprisonment altogether. In addition, prior to the imposition of imprisonment, it may be useful to explore the reasons why an individual is unable to comply with the financial sanctions. If there are underlying issues affecting their ability to pay, such as health or employment issues, the provision of support or resources to address these issues may be a better course of action than imprisonment. Finally, it is essential to ensure that the provision is applied in a fair and just manner. This includes providing individuals with notice of the financial sanctions and their potential consequences, as well as giving them an opportunity to explain their circumstances before imprisonment is imposed. In conclusion, Section 787(2) of the Criminal Code of Canada offers a powerful tool for enforcing financial sanctions. However, the use of this provision raises a number of strategic considerations, including the public perception of the justice system, the cost associated with imprisonment, and its impact on alternative forms of criminal activity. Through the implementation of alternative strategies, as outlined above, the provision can be employed in a fair and effective manner.