R. v. Woroby, 2003 MBCA 41 (CanLII)
18 The fundamental purpose and principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code (the Code) apply to all sentencings, whether the sentence is by way of a fine or imprisonment. For the purposes here, it is important to be reminded that Parliament specifically noted in s. 718.1 that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” and that in s. 718.2(b) “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” This encapsulates the principle of parity; the notion of equal justice, and the fundamental principle of justice that like cases should be treated alike, subject always to the reality that sentencing is an “inherently individualized process.” See R. v. M. (C.A.), 1996 CanLII 230 (S.C.C.), [1996] 1 S.C.R. 500 at 567.
19 With the exception of summary conviction offences and some driving offences, the Code provides no guidance with respect to the maximum or minimum amount of fines. So, how does an offender’s financial circumstances affect, if at all, the determination of a fit and just fine? We know that Parliament is concerned with an offender’s ability to pay a fine as evidenced by Parliament’s direction to judges in this regard in s. 734(2) of the Code:
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.
As well, s. 736 allows for the offender to discharge the fine or part of it through the fine option program, and s. 734.7(1) states that a court cannot issue a warrant of committal for default of a fine unless it is satisfied that the offender had no reasonable excuse for paying the fine or discharging it through the fine option program.
20 Are the financial circumstances of an offender relevant to the determination of a fine, other than in regard to the offender’s ability to pay the fine imposed? Commentary on this issue usually arises in the context of the argument that a fine will have a less punitive effect on a wealthy offender. The most generally accepted view is that the wealth of an offender alone should not be used to increase the amount of a fine. For example, see the following excerpt from the article of D. A. Thomas, Sentencing -- The Basic Principles, Part II, [1967] Crim. L.R. 503 at 523:
[T]he ability of the offenders to pay is relevant only as a mitigating factor, reducing the amount which might be fixed by reference to the gravity of the offence alone; it would be inconsistent with basic tariff principles to impose a heavier fine than can be justified on the basis of the offence, on the grounds of the offender’s wealth. Thus, while there may be discrimination between offenders of different financial standing in respect of similar offences, this discrimination is the result of mitigating the fine imposed on the less affluent offender, rather than by increasing the fine imposed on the wealthier man beyond the amount which can be justified by reference to the gravity of the offence.
21 The foregoing principle is articulated in the text of Clayton C. Ruby, Sentencing, 5th ed. (Butterworths: Toronto, 1999) at 267, para. 6.40:
The law has never accepted the principle that the rich ought to be more severely punished merely because they are more able to pay. In an area where we have no evidence as to the effect of penalties in a differential way, and all is speculation, it will be best to keep equality as the touchstone and keep the level of sentence within the means of both rich and poor, adjusting for hardship where required.
22 While the preceding commentary focusses on the relevance of the wealth of an offender, the principle can be explained in a more general way and may be stated as follows: when imposing a fine, the sentencing judge must determine the amount of the fine based on the degree of responsibility of the offender and the gravity of the offence, without regard to the offender’s financial resources, except for adjusting for hardship and the ability of the offender to pay the fine. By this statement, I am not saying that other financial circumstances are not appropriate considerations in certain situations. For example, the value of property involved in a property offence or the amount of money earned from criminal activity may very well be relevant. In that there are no such financial circumstances here, I need not comment further in this regard. I also wish to make it clear that my comments are restricted to individual offenders, as I have not considered what, if any, different principles may apply to corporate offenders.
23 I find support for the foregoing principle in the fact that Parliament has directed judges to consider the financial resources of an offender in the limited context of the offender’s ability to pay. In 1996, Parliament accepted many recommendations contained in the 1987 report Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services Canada, 1986), and made many changes to the sentencing provisions of the Code. The 1987 report included commentary on alternative fine systems in other countries and recommended further study to assist the court in “the determination of equitable fines on offenders of varying means so as to maximize equity of impact” (Recommendation 12:19). Considering the sweeping changes which were made to the sentencing provisions of the Code, if Parliament had intended to make fines proportional to the offender’s wealth or lack thereof, Parliament could have specifically indicated this, as has been recently done in England. Halsbury’s Laws of England, Powers of Criminal Courts (Sentencing) Act 2000 (2000 c 6) 4th ed., vol. 12, 2002 Reissue, Criminal Law, which came into force on August 25, 2000, provides that the court must take into account the financial circumstances of an offender prior to imposing a fine and that these circumstances may have the effect of increasing or reducing the amount of the fine (s. 128(3)).
24 The sentencing judge was correct to note that denunciation and deterrence were of prime importance for the offence of possession of child pornography. As has been stated in many recent cases, the possession of child pornography, without distribution, is a serious crime that requires denunciation and deterrence. The child victims must be protected from being victimized time and time again by those who view their images. Therefore, it was appropriate that the sentencing judge sought to punish the appellant by a substantial fine. But she erred in imposing a fine of $10,000 for two reasons. By the sequence of events at the sentencing hearing and her words, I can only conclude that the sentencing judge determined the amount of the fine based on the appellant’s income. In doing so, she erred in principle. Secondly, even if she had not erred in this way, the fine is simply harsh and excessive, when I consider the cases (albeit very limited in number) in which fines have been imposed, and the degree of responsibility of the appellant and the gravity of his offence. Therefore, the amount of the fine is reduced to $3,500 to reflect, as best one can in these circumstances, the principle of parity in sentencing. The appellant will pay the fine by monthly installments of at least $100 per month. In reaching these conclusions, I only considered the appellant’s financial resources in the context of reducing the required monthly payment.
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