Fines

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General Principles

Fines are a form of financial punishment available as a sentencing option for many offences.[1]:

Power of court to impose fine
734 (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1

(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or
(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

...
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.

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A court may impose a fine order under s. 734.1 where the offence does not include a mandatory minimum.[2] Before a fine can be imposed the court must believe that the accused is "able to pay" the fine[3] and where a pecuniary punishment is considered proportionate to the offence and offender. This focus on ability to pay, found in s. 734(2), prevents "offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment."[4]

The burden is upon the party seeking the fine to prove that the offender has the ability to pay on a balance of probabilities.[5] The party does not need to identify or locate the specific assets available, rather "may rely on indirect evidence" to prove an ability to pay.[6]

Absent evidence to the contrary, the court may infer an ability to pay where the offender has been in "receipt of illegally-obtained funds". This must take into account the "amount of funds acquired" and "the length of time that has passed between the acquisition of the funds and the imposition of sentence."[7]

To issue a fine a judge must order:

  1. an amount to be paid
  2. the mode of payment
  3. the time(s) that the fine should be paid

The judge may add further requirements as seen fit.

If the offender fails to pay, it is on the offender to show proof that they are unable to pay in the circumstances.[8]

Any money found upon the accused that is not otherwise owned by someone else may be used to pay off the fine imposed.[9]

  1. s. 734
    716 states that a fine "includes a pecuniary penalty or other sum of money, but does not include restitution."
  2. s. 734
  3. 734(2)
  4. R v Topp, 2011 SCC 43 (CanLII)
  5. Topp, ibid.
  6. Topp, ibid.
  7. Topp, ibid.
  8. R v Desjardins, 1996 CanLII 4709 (NB CA)
    see also R v Wu, 2003 SCC 73 (CanLII), [2003] 3 SCR 530
  9. s. 734(6)

Ability to Pay

734.
...
Offender’s ability to pay
(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.
...

R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


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There is no common law duty on a judge to inquire about the offender's ability to pay.[1] The inquiry required under s. 734(2) only applies to fines imposed under s. 734(1).[2]

  1. R v Noseworthy, 2000 NFCA 45 (CanLII)
  2. Noseworthy, ibid.

Form of Order

Terms of order imposing fine
734.1 A court that fines an offender under section 734 shall do so by making an order that clearly sets out

(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion thereof, must be paid; and
(d) such other terms respecting the payment of the fine as the court deems appropriate.

1995, c. 22, s. 6.


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Procedure of Making the Order

Obligations of court
734.2 (1) A court that makes an order under section 734.1 shall

(a) cause a copy of the order to be given to the offender;
(b) explain the substance of sections 734 to 734.8 and 736 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 for a change to the optional conditions and of any available fine option programs referred to in section 736 as well as the procedure to apply for admission to them; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.

For greater certainty
(2) For greater certainty, a failure to comply with subsection (1) does not affect the validity of the order.
1995, c. 22, s. 6; 2008, c. 18, s. 39.


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Procedure for Payment of Fine

Proceeds to go to provincial treasurer
734.4 (1) Where a fine or forfeiture is imposed or a recognizance is forfeited and no provision, other than this section, is made by law for the application of the proceeds thereof, the proceeds belong to Her Majesty in right of the province in which the fine or forfeiture was imposed or the recognizance was forfeited, and shall be paid by the person who receives them to the treasurer of that province.
Proceeds to go to Receiver General for Canada
(2) Where

(a) a fine or forfeiture is imposed
(i) in respect of a contravention of a revenue law of Canada,
(ii) in respect of a breach of duty or malfeasance in office by an officer or employee of the Government of Canada, or
(iii) in respect of any proceedings instituted at the instance of the Government of Canada in which that government bears the costs of prosecution, or
(b) a recognizance in connection with proceedings mentioned in paragraph (a) is forfeited,

the proceeds of the fine, forfeiture or recognizance belong to Her Majesty in right of Canada and shall be paid by the person who receives them to the Receiver General.

Direction for payment to municipality
(3) Where a provincial, municipal or local authority bears, in whole or in part, the expense of administering the law under which a fine or forfeiture is imposed or under which proceedings are taken in which a recognizance is forfeited,

(a) the lieutenant governor in council of a province may direct that the proceeds of a fine, forfeiture or recognizance that belongs to Her Majesty in right of the province shall be paid to that authority; and
(b) the Governor in Council may direct that the proceeds of a fine, forfeiture or recognizance that belongs to Her Majesty in right of Canada shall be paid to that authority.

1995, c. 22, s. 6.


Variation of Order

Change in terms of order
734.3 A court that makes an order under section 734.1, or a person designated either by name or by title of office by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482 or 482.1, change any term of the order except the amount of the fine, and any reference in this section and sections 734, 734.1, 734.2 and 734.6 to an order shall be read as including a reference to the order as changed under this section.
1995, c. 22, s. 6; 2002, c. 13, s. 74.


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Fine and Imprisonment

718.3
...
Imprisonment in default where term not specified
(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.
...
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.


718.3 CCC

Default

Where an offender has a fine imposed by the court, the court may order that a period of jail time in default may be substituted for the fine:

734.
...
Meaning of default of payment
(3) For the purposes of this section and sections 734.1 to 737, a person is in default of payment of a fine if the fine has not been paid in full by the time set out in the order made under section 734.1.
...
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


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Licences, permits, etc.
734.5 If an offender is in default of payment of a fine,

(a) where the proceeds of the fine belong to Her Majesty in right of a province by virtue of subsection 734.4(1), the person responsible, by or under an Act of the legislature of the province, for issuing, renewing or suspending a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew or may suspend the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender; or
(b) where the proceeds of the fine belong to Her Majesty in right of Canada by virtue of subsection 734.4(2), the person responsible, by or under an Act of Parliament, for issuing or renewing a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew or may suspend the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender.

1995, c. 22, s. 6; 1999, c. 5, s. 34.


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Warrant of committal
734.7 (1) Where time has been allowed for payment of a fine, the court shall not issue a warrant of committal in default of payment of the fine

(a) until the expiration of the time allowed for payment of the fine in full; and
(b) unless the court is satisfied
(i) that the mechanisms provided by sections 734.5 and 734.6 are not appropriate in the circumstances, or
(ii) that the offender has, without reasonable excuse, refused to pay the fine or discharge it under section 736.


Reasons for committal
(2) Where no time has been allowed for payment of a fine and a warrant committing the offender to prison for default of payment of the fine is issued, the court shall state in the warrant the reason for immediate committal.
Period of imprisonment
(2.1) The period of imprisonment in default of payment of the fine shall be specified in a warrant of committal referred to in subsection (1) or (2).
...
Effect of imprisonment
(4) The imprisonment of an offender for default of payment of a fine terminates the operation of sections 734.5 and 734.6 in relation to that fine.
1995, c. 22, s. 6; 1999, c. 5, s. 35.


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Definition of “penalty”
734.8 (1) In this section, “penalty” means the aggregate of

(a) the fine, and
(b) the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection 734(7).

Reduction of imprisonment on part payment
(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.
Minimum that can be accepted
(3) No amount offered in part payment of a penalty shall be accepted after the execution of a warrant of committal unless it is sufficient to secure a reduction of sentence of one day, or a whole number multiple of one day, and no part payment shall be accepted until any fee that is payable in respect of the warrant or its execution has been paid.
To whom payment made
(4) Payment may be made under this section to the person that the Attorney General directs or, if the offender is imprisoned, to the person who has lawful custody of the prisoner or to any other person that the Attorney General directs.
Application of money paid
(5) A payment under this section shall be applied firstly to the payment in full of costs and charges, secondly to the payment in full of any victim surcharge imposed under section 737, and then to payment of any part of the fine that remains unpaid.
1995, c. 22, s. 6; 1999, c. 5, s. 36, c. 25, s. 19(Preamble).


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Punishment
787.
...
Imprisonment in default where not otherwise specified
(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.
...
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44.


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Default time can be imposed in situations such as:

  • default of fine instead of forfeiture under s. 462.37 (1)

Duration of Imprisonment

734
...
Imprisonment in default of payment
(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5), shall be deemed to be imposed in default of payment of the fine.
Determination of term
(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.


...
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


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Where the fine is imposed for a summary offence, s. 787(2) limits the maximum sentence for default at 6 months.

Remissions

Remission by Governor in Council
748.1 (1) The Governor in Council may order the remission, in whole or in part, of a fine or forfeiture imposed under an Act of Parliament, whoever the person may be to whom it is payable or however it may be recoverable.
Terms of remission
(2) An order for remission under subsection (1) may include the remission of costs incurred in the proceedings, but no costs to which a private prosecutor is entitled shall be remitted.
1995, c. 22, s. 6.


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Fine in Lieu of Forfeiture

Fine Option Program

Fine option program
736. (1) An offender who is fined under section 734 may, whether or not the offender is serving a term of imprisonment imposed in default of payment of the fine, discharge the fine in whole or in part by earning credits for work performed during a period not greater than two years in a program established for that purpose by the lieutenant governor in council

(a) of the province in which the fine was imposed, or
(b) of the province in which the offender resides, where an appropriate agreement is in effect between the government of that province and the government of the province in which the fine was imposed,

if the offender is admissible to such a program.

Credits and other matters
(2) A program referred to in subsection (1) shall determine the rate at which credits are earned and may provide for the manner of crediting any amounts earned against the fine and any other matters necessary for or incidental to carrying out the program.
Deemed payment
(3) Credits earned for work performed as provided by subsection (1) shall, for the purposes of this Act, be deemed to be payment in respect of a fine.
Federal-provincial agreement
(4) Where, by virtue of subsection 734.4(2), the proceeds of a fine belong to Her Majesty in right of Canada, an offender may discharge the fine in whole or in part in a fine option program of a province pursuant to subsection (1), where an appropriate agreement is in effect between the government of the province and the Government of Canada.
R.S., 1985, c. C-46, s. 736; R.S., 1985, c. 27 (1st Supp.), s. 162, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 6.


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See Also