R. v. Wu

R. v. Wu
Collection
Supreme Court Judgments
Date
2003-12-18
Neutral citation
2003 SCC 73
Report
[2003] 3 SCR 530
Case number
29053
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 29053
Decision Content
R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73
Her Majesty The Queen Appellant
v.
Yu Wu Respondent
and
Charter Committee on Poverty Issues Intervener
Indexed as: R. v. Wu
Neutral citation: 2003 SCC 73.
File No.: 29053.
2003: June 4; 2003: December 18.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Criminal law — Sentencing — Conditional sentence — Possession of contraband cigarettes — Accused unable to pay minimum financial penalty mandated by Excise Act — Whether prison appropriate — Whether trial judge erred in imposing conditional sentence — Criminal Code, R.S.C. 1985, c. C-46, s. 742.1 — Excise Act, R.S.C. 1985, c. E-14, s. 240(1) .
The accused was convicted of possession of 300 cartons of contraband cigarettes. Section 240(1.1) (a)(i) of the Excise Act carried a minimum penalty of $0.16 per cigarette, which amounted to $9,600. The trial judge concluded that the accused was not now and would not in the foreseeable future be able to pay such a heavy fine. The trial judge was also of the view that imprisonment for any length of time would not be a fit sentence in this case. He said he was “satisfied that, but for the minimum fine provisions [in the Excise Act ], this would be a case for a suspended sentence”. In the absence of a regime in Ontario “permitting offenders to work off the fines”, and believing that incarceration of the accused in default of paying the fine would not be just, he concluded that a conditional sentence would be appropriate.
Accordingly, the accused was fined $9,600, given no time to pay, and in default of payment was immediately given a conditional sentence of 75 days to be served in the community (i.e., at home) subject to a curfew from 6 p.m. to 6 a.m. every day except for absences required “for employment, medical, dental or worship”. He was allowed two hours extra liberty on either Saturday or Sunday.
Both the summary conviction appeals judge and the majority of the Court of Appeal upheld the sentence. At issue in this appeal is whether the conditional sentence was validly imposed.
Held (Deschamps J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: The trial judge erred in law in imposing a conditional sentence. Conditional sentences are not “probation under a different name” but rather sentences of imprisonment served in the community. In this case, the statutory conditions precedent to a conditional sentence were not met in two important respects. First, the trial judge’s explicit finding that this was a proper case for a suspended sentence and probation, and that imprisonment was not warranted, puts this case outside the scope of a conditional sentence. Second, nowhere in the Criminal Code is it suggested that conditional sentences are available to enforce unpaid fines.
The purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment. A conditional sentence is a form of imprisonment. Unless, in the terms of s. 734.7(1), the Crown can establish that such a defaulter has “without reasonable excuse, refused to pay”, a warrant of committal should not be issued.
If an offender does not have the means to pay a fine immediately, he or she should be given a reasonable time to pay. The offender may also be eligible for provincial fine option programs in which the fine may be discharged “in whole or in part by earning credits for work performed during a period not greater than two years” (s. 736). In the event of default, the Crown can resort to a number of civil remedies such as suspending licences or other instruments until the fine is paid in full or registering the fine owing with the civil courts. The option of jail for default is fenced in with important restrictions. A fine default is not punishable by committal unless the other statutory remedies, including licence suspensions and civil proceedings, are not appropriate in the circumstances (s. 734.7(1)(b)(i)), or the offender has, without reasonable excuse, refused to pay the fine or discharge it under s. 736 (s. 734.7(1)(b)(ii)). Where the offender’s reasonable excuse for failure to pay a fine is simple poverty, it is not open to a court to jail him or her under s. 734.7(1)(b)(i). Here, a functioning fine option program was not available in Ontario and there was no evidence as to what, if any, federal permits or licences were held by the accused.
It cannot be assumed that the financial circumstances of an offender at the date of the sentencing will necessarily continue into the future. An immediate committal order should only be made in exceptional circumstances, which did not exist here. The facts were simply that the accused was on welfare and lacked the ability to pay. An offender’s inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied. While it would have been appropriate to impose the minimum fine plus time to pay plus 30 days in jail in default of payment, the trial judge erred in jumping directly from imposition to committal without passing through the intermediate stages of alternative collection procedures, default, and, only if the Crown thinks it has grounds to proceed, a s. 734.7(1) committal hearing.
The conditional sentence should therefore be set aside. However, since the accused has served his conditional sentence, which, if properly imposed, would bar all further collection procedures, further collection procedures are stayed.
Per Deschamps J. (dissenting): The trial judge did not err in imposing a conditional sentence in default of the payment of a fine. It is impossible to reconcile, in the case of an impecunious person, all of the sentencing principles contained in the Criminal Code with a provision prescribing a minimum fine. In principle, a sentence must take into account all aggravating and mitigating circumstances relating to the offender’s situation. The judge must consider that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. A minimum fine does not allow the particular circumstances of the offender to be taken into account. Given that in Ontario there is no organized scheme for community service, the judge who seeks an alternative solution, or even a means of encouraging payment of the fine, has little room to manoeuvre. The Criminal Code confers discretion on the judge to impose imprisonment in default of payment of a fine when he or she knows that imprisonment is, in practice, the sanction actually imposed for the offence committed. The judge is not obliged to allow time for payment. In this case, the trial judge did not really ever contemplate imposing the minimum fine along with a time for payment and a period of imprisonment in the event of default. He wanted to impose a realistic and suitable punishment and did not believe that incarceration was necessary. His decision to impose a conditional sentence in default of payment was enlightened and sensitive to the particular circumstances of the case. It also respected the principles of gradation of sentences and properly balanced the relevant penological goals.
Knowing that the offender did not have any money, the judge could order imprisonment in default of payment of the fine. While such an order, at first glance, seems to punish the poor more severely and appears contrary to Parliament’s intent, the adjustment required in the sphere of sentencing to take into account the poverty of an offender cannot be reduced to a concern for ensuring that absence of means does not become a reason for imprisonment. All of the effects of a sentence and the different impact that certain sentences may have on different individuals must be taken into account. In this case, a conditional sentence could not be ruled out on any policy grounds.
Cases Cited
By Binnie J.
Considered: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to: R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8; R. v. Snider (1977), 37 C.C.C. (2d) 189; Regimbald v. Chong Chow (1925), 38 Que. K.B. 440; R. v. Andrews, [1974] 2 W.W.R. 481; R. v. Brooks, [1988] N.S.J. No. 94 (QL); R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15; R. v. Tessier (1957), 21 W.W.R. 331; Attorney General of Canada v. Radigan (1976), 33 C.R.N.S. 358; R. v. Natrall (1972), 9 C.C.C. (2d) 390; R. v. Zink (1992), 13 B.C.A.C. 241; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Hebb (1989), 69 C.R. (3d) 1; R. v. Zachary, [1996] R.J.Q. 2484; R. v. MacFarlane (1997), 121 C.C.C. (3d) 211; Clergue v. H. H. Vivian and Co. (1909), 41 S.C.R. 607; Re International Woodworkers of America, Local 2-306 and Miramichi Forest Products Ltd. (1971), 21 D.L.R. (3d) 239.
By Deschamps J. (dissenting)
R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Gladue, [1999] 1 S.C.R. 688.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C-46 [am. 1995, c. 22], ss. 718 , 718.2 (a), (d), (e), 718.3 , 734 , 734(2) [repl. 1999, c. 5, s. 33], 734.5 [idem, s. 34 ], 734.6, 734.7, 736 [am. 1997, c. 18, s. 107], 738, 742, 742.1 [am. 1997, c. 18, s. 107.1].
Excise Act, R.S.C. 1985, c. E-14, s. 240(1) [repl. 1994, c. 29, s. 15], (1.1)(a)(i) [ad. idem; am. 1999, c. 17, s. 144(1)(z.20)].
O. Reg. 925/93.
Provincial Offences Act, R.S.O. 1990, c. P.33.
Provincial Offences Act, S.N.L. 1995, c. P-31.1, s. 38.
R.R.O. 1990, Reg. 948 (Fine Option Program).
Authors Cited
Ashworth, Andrew. Sentencing and Criminal Justice, 3rd ed. Markham: Butterworths, 2000.
Canada. Canadian Centre for Justice Statistics. Adult Correctional Services in Canada 2000-2001. Ottawa: Canadian Centre for Justice Statistics, 2002.
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach Report of The Canadian Sentencing Commission. Ottawa: The Commission, 1987.
Canada. House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, p. 5873.
Canada. National Council of Welfare. Justice and the Poor. Ottawa: The Council, 2000.
Elliott, Robin, and Jennifer Airs. New Measures for Fine Defaulters, Persistent Petty Offenders and Others: The Reports of the Crime (Sentences) Act 1997 Pilots. London: Home Office, 2000.
Hudson, Barbara. “Punishing the Poor: Dilemmas of Justice and Difference”, in William C. Heffernan and John Kleinig, eds., From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law. New York: Oxford University Press, 2000, 189.
Innes, Joanna. “The King’s Bench prison in the later eighteenth century: law, authority and order in a London debtors’ prison”, in John Brewer and John Styles, eds., An Ungovernable People: The English and their law in the seventeenth and eighteenth centuries. New Brunswick, N.J.: Rutgers University Press, 1980, 250.
Manson, Allan. The Law of Sentencing. Toronto: Irwin Law, 2001.
Ontario. Ministry of Transportation. Driver Control Statistics, 2003.
Pettit, Philip. “Indigence and Sentencing in Republican Theory”, in William C. Heffernan and John Kleinig, eds., From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law. New York: Oxford University Press, 2000, 230.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham: Butterworths, 2002.
APPEAL from a judgment of the Ontario Court of Appeal (2001), 160 C.C.C. (3d) 321, 48 C.R. (5th) 183, 152 O.A.C. 300, [2001] O.J. No. 4885 (QL), affirming a judgment of the Superior Court of Justice affirming a judgment of the Ontario Court of Justice. Appeal allowed, Deschamps J. dissenting.
Peter DeFreitas and Marie Comiskey, for the appellant.
Lawrence Greenspon, Blair Crew and Trevor Brown, for the respondent.
Vincent Calderhead and Roger Burrill, for the intervener.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
1 Binnie J. — In this appeal we are asked to consider whether a conditional sentence was validly imposed on the respondent offender for possession of contraband cigarettes. The offender might otherwise have been sent to jail for 30 days for non-payment of a mandatory $9,600 fine. In the trial judge’s view, jail was not appropriate for this offender. On the other hand, the offender simply had no means to pay the fine. The trial judge thought a conditional sentence to be served by the offender in his home offered a way to avoid jail. I agree with the trial judge’s initial conclusion that this was not an appropriate case for jail. I disagree with his sentencing solution. The Criminal Code, R.S.C. 1985, c. C-46 , properly interpreted, offered the sentencing judge a range of alternative solutions for this offender but a conditional sentence was not amongst them.
2 Debtors’ prison for impoverished people is a Dickensian concept that in civilized countries has largely been abolished. Imprisonment for civil debt was abolished in Ontario by the end of the 19th century. In its 1996 sentencing reforms, Parliament decreed that jail should be reserved for those whose conduct deserves to put them there. Here, the trial judge thought a fit sentence would be a suspended sentence with probation, but this was not possible under the Act. Yet debtors’ prison “in the community”, which is what a conditional sentence amounts to, is repugnant in the case of an individual who is undeserving of jail yet who simply cannot pay.
3 As will be seen, the purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment. A conditional sentence is a form of imprisonment. Therefore, a conditional sentence is not an appropriate sentence to impose on an offender simply because he or she has no means to pay a fine. Nothing in the Code authorises a conditional sentence to be used for collection purposes. Unless, in the terms of s. 734.7(1), the Crown can establish that a defaulter has “without reasonable excuse, refused to pay”, a warrant of committal should not be issued.
4 The conditions precedent to the imposition of a conditional sentence were accordingly not met. The sentencing judge commented that “hard cases make bad law and this is a hard case”. In my view, with respect, it also made bad law. I would allow the appeal.
I. Facts
5 The respondent, Yu Wu, was convicted of possession of 300 cartons of contraband cigarettes. The Excise Act, R.S.C. 1985, c. E-14, s. 240(1.1) (a)(i), carried a minimum penalty of $0.16 per cigarette, which amounted to $9,600. The circumstances, as related by the accused, were curious. He explained that he had injured his back in 1994, had been unemployed since then, and was supporting himself and his 16-year-old daughter in Toronto on welfare payments of $965 per month. He went to gambling casinos three to five times a week. At the Niagara Falls Casino in late May or early June 1998, he had struck up an acquaintance with a man he identified only as “Mike”. In July 1998, he agreed to help “Mike” drive to Montreal to gamble. They took Mike’s car. Along the way, Mike pulled into a house in Cornwall. In this stranger’s house, Mr. Wu waited for almost 8 hours. Finally, the owner of the house told Mr. Wu that Mike had left and that he should drive Mike’s car back to Toronto. On the way home to Toronto in Mike’s car, the respondent was stopped by police. He testified that it was only when the police pulled him over that he realized that the back seat of the car contained 300 cartons of contraband tobacco.
6 Mr. Wu conceded that he did not know “Mike’s” last name, phone number, or address. The only way that he could contact Mike would be if he happened to run into Mike at an Ontario casino. Otherwise, Mr. Wu would have to wait for Mike to call Mr. Wu’s pager or come to Mr. Wu’s home. Apparently, they did not meet and “Mike” never did call.
7 The accused was prosecuted under s. 240(1) of the Excise Act for possession of contraband tobacco.
II. Court Proceedings
A. Ontario Court of Justice — Renaud J.
8 After considering the facts, the trial judge stated that imprisonment for any length of time would not be appropriate in this case. He was “satisfied that, but for the minimum fine provisions [in the Excise Act ], this would be a case for a suspended sentence”. The accused “is an individual with very little to be said of him, positive or negative. [He] is someone who has not demonstrated a tendency to engage in any [anti]-social behaviour and [he] is someone who should respond positively to a period of probation.” However, in view of the minimum fine provisions of the Excise Act , the trial judge concluded that probation or a conditional discharge were not available sentencing options.
9 Referring to the decision of this Court in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, the trial judge commented that it was clear that “jail should be reserved for those individuals who are a danger to the community. This individual is not a danger to the community”.
10 That said, the mandatory fine scheme “evidences Parliament[’s] wish that smuggling be deterred”. The Cornwall area “is plagued by smuggling” and the Court of Appeal had warned trial judges “to steel themselves to be harsh in imposing sentences on very sympathetic individuals” because the smuggling rings deliberately recruited runners who would be seen by the courts as sympathetic people.
11 The sentencing judge concluded that the respondent was not now and would not in the foreseeable future be able to pay such a heavy fine. In the absence of a regime in Ontario “permitting offenders to work off the fines”, and believing that incarceration of the accused in default of paying the fine would not be just, he concluded that a conditional sentence would be appropriate.
12 Accordingly, the accused was fined $9,600, given no time to pay, and in default of payment was immediately given a conditional sentence of 75 days to be served in the community (i.e., at home) subject to a curfew from 6 p.m. to 6 a.m. every day except for absences required “for employment, medical, dental or worship”. He was allowed two hours extra liberty on either Saturday or Sunday.
B. Superior Court of Justice — Robertson J.
13 The summary conviction appeals judge concluded that the trial judge had not erred in imposing a sentence “particular to the specific facts of this case”. The Crown’s appeal was dismissed.
C. Ontario Court of Appeal (2001), 160 C.C.C. (3d) 321
1. Sharpe J.A. for the majority
14 The trial judge had given the accused no time to pay, which indicated that he “ha[d] determined, then and there, that the appropriate sanction for the offender’s conduct is either immediate payment or immediate imprisonment” (para. 18). As the “legal and practical effect of the sentence is to send the offender directly to jail” (para. 18), Sharpe J.A. concluded that the conditions precedent to a conditional sentence were satisfied. While the trial judge was required to impose a fine, he was not required to impose a term of imprisonment in default of payment. However, “[t]he imposition of a fine of $9,600 that could not and would not be paid would amount to a hollow sentence that would fail to adequately sanction the respondent’s wrongful conduct” (para. 19). Accordingly, in the majority view, the imposition of a conditional sentence in default of immediate payment of the fine allowed the trial judge to arrive at a sentence that “respected the letter of the law, was closely tailored to the circumstances of the offender, and gave appropriate emphasis to the goals of deterrence and retribution” (para. 19).
2. Doherty J.A., dissenting
15 Doherty J.A. took the view that once the trial judge had decided that imprisonment would not be an appropriate sentence, the statutory conditions precedent for a conditional sentence were not met. Further, the conditional sentence was imposed here not by reason of the offence, but to enforce the non-payment of the fine (at para. 40):
I think it is just as much an error in principle to impose a conditional sentence in these circumstances as it would have been to impose a custodial sentence. Both amount to deprivation of liberty, not as a fit sanction for the offence committed, but because the offender is unable to pay a fine. Economic imprisonment whether in jail or in the community is offensive to the present provisions of the Criminal Code relating to fines.
He would therefore have allowed the Crown’s appeal.
III. Analysis
16 The principles of sentencing include Parliament’s direction that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders” (s. 718.2(d) and (e) of the Code (emphasis added)).
17 Applying these principles, the trial judge concluded very firmly that the respondent should not go to jail for what was seen as a relatively minor role in this cigarette smuggling operation. The respondent did not bring the goods across the border. He had no previous record for such an offence. He was no danger to the community. He was the sole support for his teenage daughter. Yet, in default of payment of a mandatory minimum $9,600 fine, which the judge believed the respondent had no ability to pay, he felt obliged to consider a significant period of incarceration. Indeed, the Crown Attorney at trial calculated that under s. 734(5) the statutory formula would “deem” the period of imprisonment in default of payment of a $9,600 fine to be 174 days. (The Crown conceded the formula was inapplicable to a fine imposed under the Excise Act .) The judge found he retained a discretion to order a shorter sentence and would have sentenced the respondent to 30 days in jail in default of payment were a conditional sentence not an available option.
18 That said, the trial judge concluded that a conditional sentence was available. The following exchange occurred at the sentencing hearing:
[DEFENCE]: So it would make sense to me, if I can just get this off my chest, it would make sense to me that if you can give a conditional sentence . . .
THE COURT: For a manslaughter
[DEFENCE]: . . . for a manslaughter or for anything else when jail is an appropriate sentence, surely on a fine situation, for a tax [evasion], surely, it would be logical to say that you can give a conditional sentence in that circumstance.
. . .
THE COURT: . . . Why would a non-violent offender actually be detained in a custodial facility while a violent offender does not, if [he or she] doesn’t threaten the safety of the community. . . .
19 Ordinarily, of course, the appellate courts will defer to the sentence considered appropriate by the trial judge, who “possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system”: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91; see also R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, at para. 19. Moreover, “the sentencing judge will generally have a better knowledge of the community in which the offences occurred and is therefore in a better position to craft an appropriate sentence” (R.A.R., supra, at para. 19). In this case, however, the Crown argues that the trial judge made an error of law in concluding that a conditional sentence was an available option. I agree.
20 The Crown has a very practical interest in the subject matter of this appeal. Imprisonment terminates the Crown’s power to pursue civil enforcement remedies to collect the money (s. 734.7(4) of the Code). Some individuals with savings in the bank might prefer spending 75 days under house arrest rather than paying $9,600. In this case, however, the evidence is that the respondent’s poverty left him with no choice in the matter.
A. The Mandatory Minimum Fine
21 Parliament is quite specific about the range of penalties in s. 240 of the Excise Act :
240. (1) Subject to subsections (2) and (3), every person who sells or offers for sale or has in the person’s possession any manufactured tobacco or cigars, whether manufactured in or imported into Canada, not put up in packages and stamped with tobacco stamps or cigar stamps in accordance with this Act and the ministerial regulations
. . .
(b) is guilty of an offence punishable on summary conviction and liable to
(i) a fine of not less than the amount determined under subsection (1.1) and not more than the lesser of $500,000 and the amount determined under subsection (1.2), or
(ii) both the fine described in subparagraph (i) and imprisonment for a term not exceeding two years. [Emphasis added.]
22 The trial judge could, in a proper case, have concluded that a fit sentence would include both the mandatory minimum fine and a period of imprisonment. He emphatically decided that imprisonment was not a fit punishment. Indeed, as stated, his preference would have been to impose no more than a suspended sentence with probation. Yet in Proulx itself, Lamer C.J. stated, at para. 55:
At one end of the range, Parliament denied the possibility of a conditional sentence for offenders who should receive a penitentiary term. At the other end, Parliament intended to ensure that offenders who were entitled to a more lenient community measure — such as a suspended sentence with probation — did not receive a conditional sentence, a harsher sanction in this legislative scheme. [Emphasis added.]
23 A mandatory minimum fine of $9,600 imposed irrespective of the offender’s means to pay is a legislated exception to the usual sentencing principles. Even before the 1996 sentencing reforms, the correct rule was that a fine should be assessed having regard to “the offender’s ability to pay” (R. v. Snider (1977), 37 C.C.C. (2d) 189 (Ont. C.A.), at p. 190). It was quite open to Parliament to impose a minimum fine, but Parliament’s amendments did not require that inability to pay should necessarily land the offender in jail. Indeed, the 1996 amendments show that Parliament did not intend to send the impoverished to jail by reason only of their inability to pay.
B. Availability of Conditional Sentences
24 Conditional sentences were introduced with the 1996 sentencing reforms of the Code. The Minister of Justice explained the purpose of his bill as follows:
A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences but who do not need or merit incarceration.
(House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20,1994, p. 5873)
The conditional sentencing regime is dealt with in s. 742.1 of the Code which provides as follows:
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
25 In Proulx, supra, it was held that the requirement that the court impose “a sentence of imprisonment of less than two years” was intended to identify the type of offenders who could be entitled to a conditional sentence (para. 55). Specifically, Parliament did not intend conditional sentences to be “probation under a different name” (para. 28). A conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment without incarceration. Only when the sentencing judge has rejected other sentencing options, such as a conditional discharge, a suspended sentence, probation or a fine, and has concluded that a term of imprisonment of less than two years is required by the gravity of the offence and the degree of responsibility of the offender, does a conditional sentence arise for consideration. At that point, the question is where the term of imprisonment is to be served, in a penal institution or, under punitive conditions, in the community. “It is this punitive aspect that distinguishes the conditional sentence from probation” (Proulx, supra, at para. 22).
26 The trial judge’s explicit finding that this was a proper case for a suspended sentence and probation, and that imprisonment was not warranted, puts this case outside the scope of a conditional sentence. As stated in Proulx, at para. 37: “Sentencing judges should always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise have been sent to jail” for the offence that gave rise to the conviction.
27 The statutory conditions precedent to a conditional sentence were not met in two important respects:
(i) The trial judge, with the best of intentions, stood the Proulx reasoning on its head. He was searching for a mechanism to deal with an offence that in his view did not warrant imprisonment at all. He thought justice would be served by keeping the respondent, if at all possible, out of jail entirely. But the conditional sentencing regime is predicated on a finding in a particular case that jail for less than two years would be a fit sentence. The effect of the trial judge’s approach would be to widen the net of the conditional sentencing regime to imprison in their homes offenders under punitive conditions purely on the basis of their inability to pay a fine. Net widening is repugnant to the conditional sentence regime: Proulx, supra, at para. 56. What is more, if the punitive conditions are breached, the offender would face the prospect of serving the balance of the sentence in an institution without possibility of parole (Proulx, at paras. 42-44), thereby adding further to the high rates of incarceration that the 1996 sentencing reforms were designed to alleviate.
(ii) Conditional sentences are presented in s. 742.1 of the Code as a sentencing option, if the conditions precedent are met, for the original offence, as Doherty J.A. emphasized in the present case. The distinction between sentencing provisions and enforcement of sentences is of long standing: Regimbald v. Chong Chow (1925), 38 Que. K.B. 440, at p. 445. Section 240 of the Excise Act permits the sentencing judge to send an offender to jail on summary conviction for up to two years. The trial judge rejected jail as a fit punishment for this offence. Jail only entered his calculation as a default provision for non-payment. As such, jail was triggered by the default, not the offence. No default, no jail. The decision of the judge to collapse the sentencing hearing into a default of payment hearing was done for administrative convenience, apparently, but it did not eliminate the fact that legally there was a shifting of gears from sentence to default to consideration of the appropriate sentence for default to committal. The conditional sentence is a creature of statute and nowhere in s. 742.1 or elsewhere in the Code is it suggested that conditional sentences are available to enforce unpaid fines.
C. The Trial Judge’s Dilemma
28 The trial judge’s dilemma was that he was required by the Excise Act to impose a minimum fine of $9,600, rising to a maximum of $14,400 based on a mechanical formula applied to the quantity of contraband cigarettes found in the offender’s possession. The trial judge did not dispute the logic of the minimum mandatory fine because in his view contraband is a serious problem in the community. His concern was the perceived inevitability of incarceration that would arise from enforcement action consequent on the respondent’s inability to pay.
29 The error in the trial judge’s approach, with respect, was his conclusion that, in the case of this respondent, the only alternative to a conditional sentence was actual jail time.
30 As a matter of law, there was nothing inevitable about incarceration in the event the respondent was simply unable to pay the $9,600 fine by reason of his poverty.
D. No Time Given for Payment
31 As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews, [1974] 2 W.W.R. 481 (B.C.S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (QL) (C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I.C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Attorney General of Canada v. Radigan (1976), 33 C.R.N.S. 358, the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender’s situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
32 Here, the trial judge issued a committal order forthwith. The Code provides that “[w]here 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” (s. 734.7(2)). This language suggests that only in exceptional circumstances that call for judicial explanation should an immediate committal order be made. Here there were no exceptional circumstances. The reason given was simply that the respondent was on welfare and lacked the ability to pay.
33 An offender’s inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C.C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241. It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent’s financial interest to his liberty interest. Parliament clearly intended that an economic punishment be imposed for an economic offence. The Crown in its factum says that tobacco smuggling results in an estimated $1 billion loss in tax revenue per year. As noted, committal of an offender for default of payment terminated the operation of all other enforcement mechanisms to collect the fine (s. 734.7(4)). It is often difficult to predict with certainty whether an offender will in future acquire the means to pay the fine, whether through his or her own labour, or perhaps a windfall.
E. Imprisonment for Debt
34 The trial judge of course put his finger on a serious problem. Debtors’ prison, a dreadful institution excoriated by Charles Dickens in Little Dorrit, is no longer with us. But according to the most recent report from Statistics Canada, 17 percent of all people in custody in provincial or territorial institutions in 2000-2001 were jailed for default on unpaid fines, i.e., at least one of the causes for their committal arose from a fine default: see Canadian Centre for Justice Statistics, Adult Correctional Services in Canada, 2000-2001 (2002), at Table 7. The numbers are fairly steady, if in slight decline, from 20 percent in 1998-1999 to 19 percent in 1999-2000.
35 A similar picture was presented by the National Council of Welfare in its report Justice and the Poor (2000), at p. 76. The Council says that in 1989-1990, fine default “played a major role” in the imprisonment of women, especially of Aboriginal women in the Prairie provinces. At the time, 47 percent of female prisoners in Saskatchewan were admitted for fine default. On a provincial basis, the Council noted of the Quebec system, at pp. 76-77, for example:
A 1994 Quebec survey found that 35 percent of the imprisoned defaulters had been fined for offences under the Criminal Code or other federal criminal laws (average fine of $262 or, in case of default, average of 26 days in prison), 10 percent for both federal and provincial offences (average $1,366 or 50 days), and 55 percent for violations of provincial laws (average $342 or 13 days) or municipal bylaws (average $116 or 8 days). The vast majority (65 percent) of the fines had been issued for driving/traffic offences, mostly under provincial laws (45 percent). The rest of the fines were for thefts and other property offences under the Criminal Code (5 percent), violations of drug laws and other federal statutes (3 percent), assaults and other offences against the person (2 percent), illegal hunting, poaching and other violations of provincial laws (2 percent), failure to appear in court and other Criminal Code violations (15 percent) as well as unspecified municipal offences (8 percent).
36 It is curious that, while a force behind the 1996 sentencing reforms to the Code was a reaction to the overuse of prison as a sanction (R. v. Gladue, [1999] 1 S.C.R. 688, at para. 57), prison as an enforcement mechanism for unpaid fines remains at such a high level. In its 1987 report, the Canadian Sentencing Commission had observed that “[t]he imposition of a ‘semi-automatic’ prison term for fine default has been the subject of relentless criticism in the sentencing literature. There is statistical evidence to support the conclusion that the imprisonment of fine defaulters without reference to their ability to pay discriminates against impoverished offenders”: Sentencing Reform: A Canadian Approach — Report of the Canadian Sentencing Commission (1987), at p. 380. The Commission recommended that “a quasi-automatic prison term not be imposed for fine default and that offenders only be incarcerated for wilful breach of a community sanction” (p. 381), meaning probation or fines (p. 347). In its 1996 sentencing reforms, Parliament took these views into account.
37 I do not overlook the corollary problem that poverty should not become a shield against any punishment at all. Otherwise, smugglers will simply be encouraged to redouble their efforts to recruit impoverished people as runners. Nor is it suggested that jail is never a fit sentence for people in the respondent’s position. In this case, however, we are confronted with a specific finding by the sentencing judge, not unreasonable in the circumstances, that jail was not a fit sentence for this offender.
38 It is one thing if the judge forms the view that jail is a fit sentence, albeit one from which the offender can extricate him- or herself by payment of a fine. It is another thing altogether where the judge, as here, concludes that jail time is not appropriate.
F. Encouragement to Pay
39 The appellant Crown states in its factum on the present appeal, “[t]he purpose of a term of imprisonment in default is to encourage fine payment; it is