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) [imposition of fine – ability to pay], 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 [terms of order imposing fine]
- (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.
[omitted (2), (3), (4), (5), (6), (7) and (8)]
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; 2019, c. 25, s. 299.
[annotation(s) added]
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 the 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:
- an amount to be paid
- the mode of payment
- 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]
- Fine Defined
For the purposes of the sentencing provisions under Part XXIII of the Code "fine" is defined as follows:
- Definitions
716 In this Part [Pt. XXIII – Sentencing (ss. 716 to 751.1)],
...
"fine" includes a pecuniary penalty or other sum of money, but does not include restitution. (amende)
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).
[annotation(s) added]
- ↑
s. 734
716 states that a fine "includes a pecuniary penalty or other sum of money, but does not include restitution." - ↑ s. 734
- ↑ 734(2)
- ↑ R v Topp, 2011 SCC 43 (CanLII), per Fish J
- ↑ Topp, ibid.
- ↑ Topp, ibid.
- ↑ Topp, ibid.
- ↑
R v Desjardins, 1996 CanLII 4709 (NB CA), per Bastarache JA
see also R v Wu, 2003 SCC 73 (CanLII), [2003] 3 SCR 530, per Binnie J - ↑ s. 734(6)
Ability to Pay
734
[omitted (1)]
- 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 [fine option program].
[omitted (3), (4), (5), (6), (7) and (8)]
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; 2019, c. 25, s. 299.
[annotation(s) added]
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]
- ↑ R v Noseworthy, 2000 NFCA 45 (CanLII), per Wells CJ
- ↑
Noseworthy, ibid.
Form of Order
- Terms of order imposing fine
734.1 A court that fines an offender under section 734 [fines] 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.
Procedure of Making the Order
- Obligations of court
734.2 (1) A court that makes an order under section 734.1 [terms of order imposing fine] shall
- (a) cause a copy of the order to be given to the offender;
- (b) explain the substance of sections 734 to 734.8 [fine order] and 736 [fine option program] to the offender;
- (c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 [change in terms of fine order] for a change to the optional conditions and of any available fine option programs referred to in section 736 [fine option program] 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) [fines – obligations of court in making order] does not affect the validity of the order.
1995, c. 22, s. 6; 2008, c. 18, s. 39.
[annotation(s) added]
Procedure for Payment of Fine
- Proceeds to go to provincial treasurer
734.4 (1) If a fine or forfeiture is imposed or an amount set out in an undertaking, release order or recognizance is forfeited and no provision, other than this section, is made by law for the application of the proceeds, the proceeds belong to Her Majesty in right of the province in which the fine or forfeiture was imposed or the amount 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) The proceeds described in subsection (1) [when fine proceeds go to provincial treasurer] belong to Her Majesty in right of Canada and must be paid by the person who receives them to the Receiver General if, as the case may be,
- (a) the 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) an amount set out in an undertaking, release order or recognizance is forfeited in connection with proceedings mentioned in paragraph (a).
- Direction for payment to municipality
(3) If 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 an amount set out in an undertaking, release order or recognizance is forfeited,
- (a) the lieutenant governor in council of a province may direct that the proceeds that belong 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 that belong to Her Majesty in right of Canada shall be paid to that authority.
1995, c. 22, s. 6; 2019, c. 25, s. 300.
[annotation(s) added]
Variation of Order
- Change in terms of order
734.3 A court that makes an order under section 734.1 [terms of order imposing fine], 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 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules], change any term of the order except the amount of the fine, and any reference in this section and sections 734 [fines], 734.1 [terms of order imposing fine], 734.2 [fines – procedure for making an order] and 734.6 [civil enforcement of fines] 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.
Fine and Imprisonment
718.3
[omitted (1) and (2)]
- 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.
[omitted (4), (5), (6), (7) and (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2019, c. 25, s. 294.
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
[omitted (1) and (2)]
- Meaning of default of payment
(3) For the purposes of this section and sections 734.1 to 737 [fines and forfeiture], 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 [terms of order imposing fine].
[omitted (4), (5), (6), (7) and (8)]
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.
[annotation(s) added]
- 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) [when fine proceeds go to provincial treasurer], 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) [when fine proceeds go to receiver general for Canada], 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.
[annotation(s) added]
- 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 [warrant of committal for default] and 734.6 [civil enforcement of fines] 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 [fine option program].
- 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) [warrant of committal for default – requirements for default order] or (2) [warrant of committal for default – reasons for committal].
[omitted (3)]
- Effect of imprisonment
(4) The imprisonment of an offender for default of payment of a fine terminates the operation of sections 734.5 [consequences on licences, permits, etc when in default] and 734.6 [civil enforcement of fines] in relation to that fine.
1995, c. 22, s. 6; 1999, c. 5, s. 35.
[annotation(s) added]
- 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) [power of province to make regulations re fines].
- 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 [victim fine surcharge], 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).
[annotation(s) added]
- Punishment
787
[omitted (1)]
- Imprisonment in default if not otherwise specified
(2) If 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 of not more than two years less a day.
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44; 2019, c. 25, s. 316.
Default time can be imposed in situations such as:
- default of fine instead of forfeiture under s. 462.37 (1)
Duration of Imprisonment
734
[omitted (1), (2) and (3)]
- Imprisonment in default of payment
(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5) [fines], 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) [fine – imprisonment in default of payment] 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) [power of province to make regulations re fines], 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 two years less a day in the case of a summary conviction offence.
[omitted (6)]
- Provincial regulations
(7) The lieutenant governor in council of a province may make regulations respecting the calculation of the costs and charges referred to in subparagraph (5)(a)(i) [fine – imprisonment in default of payment – calculation of duration] and in paragraph 734.8(1)(b) [definition of "penalty" – includes costs].
- Application to other law
(8) This section and sections 734.1 to 734.8 [fine order] and 736 [fine option program] apply to a fine imposed under any Act of Parliament, except that subsections (4) [fine – imprisonment in default of payment] and (5) [fine – imprisonment in default of payment – duration] do not apply if the term of imprisonment in default of payment of the fine provided for in that Act or regulation is
- (a) calculated by a different method; or
- (b) specified, either as a minimum or a maximum.
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; 2019, c. 25, s. 299.
[annotation(s) added]
Where the fine is imposed for a summary offence, s. 787(2) limits the maximum sentence for default at 6 months.
Compelling Attendance
- Warrant of committal
734.7
[omitted (1), (2) and (2.1)]
- Compelling appearance of person bound
(3) The provisions of Parts XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] and XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under paragraph (1)(b) [warrant of committal for default – requirements – no reasonable excuse].
[omitted (4)]
1995, c. 22, s. 6; 1999, c. 5, s. 35.
[annotation(s) added]
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) [Govt in Council may order remission of fine or forfeiture] 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.
[annotation(s) added]
Fine in Lieu of Forfeiture
Fine Option Program
- Fine option program
736 (1) An offender who is fined under section 734 [fines] 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) [fine option program – power to discharge fine] 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) [fine option program – power to discharge fine] 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) [when fine proceeds go to receiver general for Canada], 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) [fine option program – power to discharge fine], 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.
[annotation(s) added]
Civil Enforcement of Fines
- Civil enforcement of fines, forfeiture
734.6 (1) Where
- (a) an offender is in default of payment of a fine, or
- (b) a forfeiture imposed by law is not paid as required by the order imposing it,
then, in addition to any other method provided by law for recovering the fine or forfeiture,
- (c) the Attorney General of the province to whom the proceeds of the fine or forfeiture belong, or
- (d) the Attorney General of Canada, where the proceeds of the fine or forfeiture belong to Her Majesty in right of Canada,
may, by filing the order, enter as a judgment the amount of the fine or forfeiture, and costs, if any, in any civil court in Canada that has jurisdiction to enter a judgment for that amount.
- Effect of filing order
(2) An order that is entered as a judgment under this section is enforceable in the same manner as if it were a judgment obtained by the Attorney General of the province or the Attorney General of Canada, as the case may be, in civil proceedings.
1995, c. 22, s. 6.
Fined Paid by Money in Possession
734
[omitted (1), (2), (3), (4) and (5)]
- Moneys found on offender
(6) All or any part of a fine imposed under this section may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
[omitted (7) and (8)]
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; 2019, c. 25, s. 299