No. 4]
FINES *
K.B. Jobson**
Laws are like cobwebs;
the small flies are caught
but the great break through.
SOLON.
Recently, in addressing the graduating class of law students
at Dalhousie University, Lord Denning, Master of the Rolls, gave
voice to the ideal of equal justice under law, but too often, in
the daily operation of the criminal courts, liberty is purchased;
if you have cash in your pocket you walk out a free man; if you
are poor and without means you go to jail. The following exami-
nation of the relative importance of fines as a major sentencing
instrument in magistrates’ courts in Nova Scotia and assessment
of the fairness of the laws relating to fines points up the impor-
tance of Bill of Rights guarantees as a protection against im-
prisonment of the poor.
Legal Framework
Criminal Code provisions I governing fines fall into three rela-
tively simple categories. Summary conviction offences under the
Code are punishable by six months imprisonment or fine not
exceeding five hundred dollars.’j Secondly, all indictable offences
punishable by five years or less may, in lieu of imprisonment,
be punished by fine alone. And thirdly, indictable offences punish-
able by more than five years imprisonment, are punishable by fine
but only as punishment additional to imprisonment. 2 Consequently,
it can be seen, that fines have a wide scope under the Code and
* This article was written in partial fulfillment of the requirements for
the degree of Doctor of the Science of Law in the Faculty of Law, Columbia
University.
* Associate Professor, Faculty of Law, Dalhousie University.
‘References
throughout this article are to the Criminal Code Sections, as
re-numbered in: R.S.C. 1970, c. C-34.
la Criminal Code, section 722(1). Under section 388(2) a court may also order
restitution not exceeding fifty dollars in certain summary conviction offences
relating to wilfull damage to property.
McGILL LAW JOURNAL
[Vol. 16
may be applied alone or in conjunction with other punishments
for offences against the person or property or other offences.
Except for summary conviction offences and certain automo-
bile driving offences.3 no statutory limits are set on the amount
of fines. The Magna Carta and the Bill of Rights prohibit excessive
fines,4 but, in general, the lack of statutory guidelines on the amount
of fines has left the judges with a wide discretion. It would be
unusual, therefore, if noticeable disparity in the use of fines did
not show up between one court and another, and, indeed, over a
period of time in the same court.5
Enforcement provisions for payment of fines have been exten-
sively amended since 1954. At that time when the Code was revised,
the Government was urged to introduce provisions designed to
reduce imprisonment of poor persons unable to pay fines., Legis-
lative provision for inquiries into ability to pay, time for payment,
and supervision of persons in default were urged upon the govern-
ment to no avail, the Minister of Justice taking the view that the
courts already had these powers and merely putting them into
writing would make no difference to existing practice. Four years
later, however, Mr. Diefenbaker’s Government introduced reforms
designed to insure that the Code provisions for enforcement of
payment of fines could no longer be used as an excuse for impris-
onment for debt.7 In an effort to reduce the possibility of poor
persons serving prison terms in default of payment, legislation
provided that fines need no longer be made payable forthwith,
but in the discretion of the judge might be made payable on such
terms and conditions as the court might fix, including payment at
a later date. The courts always did have this discretion, but by
express legislative enactment the practice of giving time for pay-
ment or even payment on installments was now to be encouraged.
2 Section 646(1).
8 Section 234, driving while impaired, provides, in the case of a first offence,
for a fine of not more than five hundred dollars and not less than fifty dollars
or to imprisonment for three months or both. On subsequent offences im-
prisonment is the only sanction provided.
4 Clause 20 of the Magna Carta, 1215, provided: “For a trivial offence, a
free man shall be fined only in proportion to the degree of his offence, and
for a serious offence correspondingly, but not so heavily as to deprive him
of his livelihood.” Sir Ivor Jennings, Magna Carta and Its Influence In The
World Today, (London, H.M.S.O., 1965), Appendix.
5 See, for example, Table IV, infra.
6House of Commons Debates, (Ottawa, 1953-54), Volume III, pp. 2902-2909.
7 House of Commons Debates, (Ottawa, 1959), Volume V, pp. 5561-62.
No. 4]
FINES
Three provisions of the Code are designed to achieve this pur-
pose. Unless the Code directs otherwise, no fine shall be made
payable forthwith until the court is satisfied that the accused is
able to pay; or, upon being asked whether he requires time to pay,
the accused does not request time for payment. The third rule
provides that should the court deem it expedient not to grant time,
the fine shall be paid forthwith. The first of these rules appears
to require that the court satisfy itself upon an inquiry, that is, upon
a hearing into the accused’s means to pay; however, in practice,
magistrates’ courts are far too busy to spend time on such in-
quiries, and in the usual case, magistrates direct a routine ques-
tion to the accused as to whether he requires time to pay; alter-
natively, the court may shift the burden upon the accused of
requesting time for payment by ordering the fine to be payable
forthwith. In such cases the fine shall be payable forthwith unless
the accused musters up sufficient initiative to request time for
payment and to explain why he makes such a request. Where the
court does exercise its discretion and allows time for payment,
the Code provides that any time allowed shall be not less than
fourteen clear days from the date sentence is imposed. This strict
language suggests that the court is precluded from granting any
less time particularly if the prisoner has requested a longer term
for payment.
Other Code rules are designed to limit committals even in cases
of default of payment. A special provision directs that before com-
mitting a young offender (aged 16-22 years) in default of payment,
the court must obtain and consider a report concerning the con-
duct and means of payment of the accused.8 Presumably, the court,
having informed itself from a reading of the report, might give
the defaulter further time or order his committal. No empirical
evidence is available to suggest how this rule operates in practice;
however, it may well be that the rule should be amended by pro-
viding for a hearing, in the presence of the accused, into his failure
to pay the fine on time. A further rule designed to limit imprison-
ment in default of payment applies generally to all offenders in-
cluding young offenders, and is to the effect that where time has
been allowed for payment the court shall not issue the warrant
of committal in default of payment of the fine until the expiration
of time allowed for payment. Again, no empirical evidence is avail-
able to suggest how this rule operates in practice. Generally, once
the offender is in default, a warrant of committal is filled out, no
8 Section 646(10).
McGILL LAW JOURNAL
[Vol. 16
report or inquiry being a prerequisite unless the offender is aged
sixteen to twenty-two years. The police are under no obligation to
inquire why the offender is in default; their instructions are only
too clear –
to take the body and imprison it. In practice, the police
may take note of extenuating circumstances brought to their atten-
tion and may ask for further instructions with results that the
defaulter may be given additional time or other consideration.
Under the Code, fines or other monetary sanctions are recoverable
by the Attorney-General in civil proceedings at any time within
the two year limitation date,9 but in practice this procedure is
rarely used. Imprisonment is the standard consequence of failure
to pay.
Shortcomings and Reform
The seeming simplicity of the Code provisions governing the
scope, amount, and enforcement of fines gives rise to several
critical observations. First of all, under the Canadian Code the
scope of fines could be greatly extended. For example, under the
Model Penal Code a fine alone can be imposed for any offence,
not merely for those crimes falling within the lower end of the
scale of prohibited acts. Uniformity, however, in the exercise of
this very wide discretion is promoted by specific legislative cri-
teria. For example, the Court is directed not to sentence the
defendant to pay a fine alone when any other disposition is au-
thorized by law, unless having regard to the nature and circum-
stances of the crime and the character of the defendant, it is
of the opinion that a fine suffices for the protection of the
public.’0 Canadian judges might well wish they had a similarly
wide discretion, for undoubtedly, cases may arise, wounding with
intent, for example, or theft over $50, where circumstances may
indicate that the offender poses no real risk to the community,
yet because the offence is punishable by five years or more, the
law prohibits a disposition by fine alone. Significantly, the Model
Penal Code uses but one test to determine the suitability of a
fine as opposed to imprisonment: is a fine alone sufficient to
protect the public. Although no reference is made to the point
by the Model Penal Code, it would surely be open to a judge
when considering whether to punish by fine alone, to take re-
cognition of the community sense of justice and to ask himself
whether fine alone would tend to depreciate the seriousness of
9 Section 652(1).
10Model Penal Code, Proposed Official Draft, (1962), section 7.02.
No. 4]
FINES
the offence –
a factor the Court is directed to consider when
reviewing the possibility of probation under the Model Penal Code. 1
Other Model Penal Code criteria tend to limit the use of fines.
A stand is taken against the routine imposition of a fine as a pun-
ishment additional to imprisonment or probation 12 and a further
rule would limit the imposition of a fine to cases of pecuniary
gain or to cases where the court is of the opinion that a fine is
especially adapted to deterrence of the crime or to the correction
of the offender.
An unnecessarily restrictive role for fines as recommended by
the Advisory Committee on Sentencing of the American Bar Asso-
ciation purports to build on these last recommendations of the
Model Penal Code.’ 4 As proposed in Standards Relating to Senten-
cing Alternatives and Procedures, the Advisory Committee recom-
mends that a legislature should not authorize the imposition of a
fine for a felony unless the defendant has gained money or prop-
erty through the commission of the offence.’5 This view stems
from the belief by the Advisory Committee that fines have a lim-
ited correctional value. Only where the defendant has used his
offence for his own economic gain does the Committee see the
fine as a proper response. According to the Committee, the fine
would not be an appropriate penalty for offences against the
person, and where imprisonment would be too severe and pro-
bation not severe enough, restitution or reparation to the victim
would be a much more satisfactory disposition.16 To adopt the
restrictive attitude of the Advisory Committee, however, would
be a mistake, particularly in a country, such as Canada, where
fines in Nova Scotia, for example, as will be shown shortly, con-
stitute a high proportion of dispositions in non-property offences.
Even if sentencing policy dictated an acceptance of the Advisory
Committee’s position, adoption of it would be impractical. For one
“Ibid., section 7.01(1)(c).
12 Ibid., section 7.01(2).
‘3 Ibid.
14American Bar Association Project on Minimum Standards For Criminal
Justice, Standards Relating to Sentencing Alternatives and Procedures, Tenta-
tive Draft, as recommended by the Advisory Committee on Sentencing and
Review, (1967), p. 117, section 2.7, and commentary, at pp. 124-126.
1′ Ibid.
1′ Ibid., and commentary at p. 126. The efficacy of fines, generally, is ques-
tioned by Robert E. Barrett, The Role of Fines in the Administration of Justice
in Massachusetts, (1963), 48 Mass. L.R. 435. Mr. Barrett, relying on Massa-
chusetts figures, questions the utility of fines even in crimes based on greed:
ibid., p. 442.
McGILL LAW JOURNAL
[Vol. 16
reason, execution of the Committee proposals with respect to fines
would lead to an overcrowding of the jails. This in turn would
lead to more penitentiary terms and a general increase in length
of sentence. However, as shown below, fines may have equal or
greater utility than imprisonment as a correctional device; conse-
quently, an extension of fines rather than a restriction would be
a more appropriate response for Canada today.
Before commenting on the almost total lack of controls over
fines levied under the Code, reference should be made to the sec-
tion of the Code where an exception is drawn to the general lack
of rules respecting amounts of fines in cases of corporations. In
indictable offences, a corporation may be fined any amount in
lieu of imprisonment, and on summary conviction, not exceeding
$1,000,17 a maximum double the amount set in cases of natural
persons. Considering the greater wealth of corporations generally,
and the relatively high incentive for breaches of various marketing
and trading laws, a higher maximum fine for companies may be
justified.’ Even in indictable offences, however, where the amount
of the fine is not limited, in practice the courts tend to levy paltry
amounts. Indeed, the fine appears to be a rigid and fruitless sanc-
tion in curbing modem commercial practices.
A more responsive approach is taken by the Model Penal Code,
for example, in their proposal that Courts be given power to for-
feit companies’ charters. 19 The criteria for dissolution in appropri-
ate cases is not to be found in an isolated instance of criminal
activity by the corporation, but in a purposely “persistent course
of criminal conduct” and in a finding that for the prevention of
further criminal conduct of the same character the public interest
requires dissolution of the corporation. In order to insure that
proceedings are taken in appropriate cases, the Model Penal Code
authorizes the convicting court to direct individual prosecutors to
lodge dissolution proceedings in accordance with ordinary corpo-
rate law. This type of sanction should have a much greater de-
terrent effect than the threat of a mere fine, particularly in an
industry dominated by a few large corporations. If criminal sanc-
tions are not to be regarded as a mere nuisance tax to corpora-
tions, a more effective sanction than a modest fine must be
17 Section 647.
18 Views in support of double or triple fines for corporations were expressed
in Parliament during the debates on the revision of the Criminal Code in 1954:
House of Commons Debates, (Ottawa, 1953-54), Vol. III, pp. 2870-2871.
19Model Penal Code, op. cit., n. 10, section 6.04.
No. 4]
FINES
found.20 Even stiff fines, however, may have no deterrent effect
on corporate crime and Packer suggests that the sanction of ad-
verse publicity would be more effective in regulating corporate
conduct than fines.21
While Canada’s No-Rule approach to the question of amount
of fines leaves the judges with a wide discretion, several factors
may operate to impose an upper or lower limit to take care of
all but exceptional cases. Manuals for the guidance of magistrates
sometimes carry specific suggestions for appropriate fines in par-
ticular regions of the country; 22 magistrates may hold regular an-
nual or quarterly meetings to exchange information with respect
to sentencing; 23 and, as a matter of habit, a magistrate, or a group
of magistrates, soon develop an understood “tariff” or average
fine to take care of the ordinary case.24 Nevertheless, it should not
be surprising that in the absence of records or any systematic
attempts to maintain an equality in sentencing practices, fines
between magistrates, and even fines within a single magistrate’s
court, may show surprising variances.
The following table23 gives some indication of the extent to
which any so-called tariff may have prevailed among six magis-
trates’ courts in Nova Scotia during a six month survey period
20 A list of fines imposed over a recent ten year period under the provisions
of the Combines Act was tabled in the House of Commons: House of Com-
mons Debates, (Ottawa, 1966), Vol. VII, pp. 6857-6864. The amount of the fine
ranged from $25,000 to $50. Even a $20,000 fine, however, in the case of the
St. Lawrence Sugar Refineries Limited, for example, must be no more than
a minor bookkeeping entry.
21 H.L. Packer, The Limits of The Criminal Sanction, Stan. Univ. Press,
(Stanford, 1968), at p. 362.
22 S. Tupper Bigelow, A Manual For Ontario Magistrates, Queen’s Printer,
(Toronto, 1962), pp. 221-228 carried suggestions for appropriate fines in Ontario
for motor vehicle offences, and at p. 215 suggested fines for some offences
under the Code. A similar move to reduce disparities in fines among English
magistrates is found in the Royal Commission on the Penal System in England
and Wales, Written Evidence, H.M.S.O., (London, 1967), Vol. 1, at pp. 122-123.
2 3 In Ontario and New Brunswick a consistent attempt is now being made to
keep magistrates informed on sentencing matters through quarterly or semi-
annual meetings.
24 See, for example, Magistrate Bigelow’s suggestions at pp. 215-217, op. cit.,
25 The figures used in this table were collected from magistrates’ files in the
cities of Halifax and Sydney, Nova Scotia by Mr. Irwin Nathanson of Dal-
housie Law School during the summer of 1967. The survey period covered the
months of June to December, 1966: I. Nathanson, “Fines in Magistrates’
Courts” (unreported).
n. 22.
McGILL LAW JOURNAL
[Vol. 16
in sentencing offenders for assault under section 219 of the Code,
or for obstructing a police officer under section 102. These offences
are punishable by fine alone; consequently, any fines imposed need
not be distorted by additional but concurrent penalties such as
imprisonment. Under section 245(1) assault may be punishable on
indictment or on summary conviction. Only in the latter case is
there a statutory maximum of $500 on the amount of fine. Sec-
tion 245(2) relates to an aggravated form of assault: assault causing
bodily harm, punishable in the same manner as common assault
prosecuted on indictment –
two years imprisonment, fine, sus-
pended sentence, or probation. Consequently, higher penalties might
be expected for aggravated assaults under section 245(2) than for
common assault under 245(1)(a). Similarly, a choice to prosecute
on summary conviction under section 245(1)(b) rather than on
indictment under 245(1)(a) might be an indication of a petty
offence, calling for a lighter punishment than would be the case
in an indictable offence.
Minimum and Maximum Fines – Assaults and Obstruction
Table I
Magistrate
Common Assault
(indictable)
High
$
Low
$$
.
35
100
50
100
100
.
12
2
costs
10
10
A
B
C
D
E
F
Common Assault
(summary
conviction)
Low
High
Assault Causing
Bodily Harm
(indictable)
High
$
Low
$
Obstructing
Police Officer
(indictable)
Hig
S-~g
Low
Lo
.
–
–
10
150
100
.
–
–
costs
10
10
500
200
25
75
125
–
75
14
10
25
5
–
56
55
100
75
75
100
10
11
6
5
4
10
These expectations are not entirely borne out by the data. For
example, the maximum fine under the summary conviction cases
the maximum under
for common assault was $150, whereas
indictable offences was only $100. The same paradox appears
in the minimum fines levied: among assaults prosecuted on indict-
ment $2 was the lowest fine, whereas under summary convic-
tion $10 was the lowest fine. Strictly speaking “Costs” is no fine
at all, for the power to award costs is found independently in the
Code, and must not be awarded for purposes of punishment.
No. 4]
FINES
As expected, the maximum and minimum fines for aggravated
assaults were higher than for common assaults, but the variation
between magistrates was much greater than in cases of common
assault. For example, the maximum fine imposed by Magistrate
A was eight times the amount imposed by Magistrate C, and the
minimum fine imposed by Magistrate A was 15 times that imposed
by Magistrate E. Assuming that all magistrates handled a roughly
similar cross-section of cases, do the variations in maxima and
minima fines between magistrates suggest the need for legislative
criteria governing amounts of fines?
A concern over the variation in fines in magistrates’ courts in
Ontario resulted in an effort by Magistrate Bigelow to persuade
his fellow magistrates to follow a common scale of fines in typical
cases. Other means to the same end may be achieved through
sentencing councils, or by statistical analysis revealing through
computer control average or median fines for any offence in
any court. The shortcoming with all of these techniques for con-
trolling undue variations is their reliance upon self-application.
Human nature being conservative at the best of times, would it
not be more desirable to give magistrates specific guidelines in
the interests of uniformity in sentencing rather than to adhere
to the no-limit rule presently in operation?
On this point, the Model Penal Code opts for legislative criteria
governing amounts of fines. First, the Code suggests a scale of
fines related to the scale of offences, ranging from a maximum
of $10,000 on conviction of a felony of the first or second degree
to a maximum of $1,000 on conviction of a misdemeanor, and
$500 for a petty misdemeanor 26 In determining the amount of
fine and method of payment, the Court is directed to take into
consideration the financial resources of the defendant.27 Proceed-
ing on the principle that the prime purpose of a fine is to deprive
the offender of his pecuniary gain, the Model Penal Code also would
authorize any higher fine than those suggested in the scale, in an
amount double that derived by the offender from the offence;
thirdly, the Code would permit any higher fine specifically author-
ized by some other statute s
In this way, the Model Penal Code suggests some specific guide-
lines for the exercise of judicial discretion in the ordinary case,
but, in addition, retains a power in the court to exceed those limits
26 Model Penal Code, op. cit., n. 10, section 6.03.
27 Ibid., section 7.02(4).
2SIbid., section 6.03(5)(6).
McGILL LAW JOURNAL
[Vol. 16
in exceptional cases or in cases of corporations, for example, where
a double or even triple penalty may be effective in trading or mar-
ket offences. Thus, the Model Penal Code affords judges the wide
discretion open to Canadian judges under the Canadian Code, but
goes one better in attempting to stabilize discretion in the ordinary
case.
According to one view, time devoted to promoting uniformity
of fines in particular offences is misspent, for the amount of the
fine should not depend solely upon the gravity of the offence, but
on the ability of the offender to pay. Accordingly, time spent in
formulating scales of fines, organizing sentencing councils, or in
promoting other uniformity measures are misplaced. Instead, an
inquiry into the offender’s means, and relating it a scale of day-
fines, would have substantial correctional value, and only then
would courts ensure that different offenders are punished equally
for equal offences.
Under Swedish law, for example, and under the West German
Draft Code, day-fines are used. That is to say, fines are expressed
in units, the monetary value of each unit varying between a mini-
mum of two kroner, for example, and a maximum of five hundred
kroner. The monetary value of the unit is determined by consider-
ation of the wealth of the accused, his income, obligations, and
other economic circumstances. 29 For identical offences, then, each
deserving the greatest number of units, it would be possible for
a fine to vary according to the accused’s ability to pay from $150,
for example, to $700. A further characteristic of the day-fine as
it obtains in Sweden is the procedure of “conversion” to be fol-
lowed on default. This means that before a convicted person can
be imprisoned in default of payment, a court hearing must be held
on application by the prosecutor. Judgment is pronounced after
the hearing at which the offender must appear personally. Further
time to pay may be granted, or the fine may be converted into
a prison term related to the amount of the fine. No application
for conversion will be held later than three years after the fine
was levied.30 As indicated earlier, the requirement of a formal
inquiry into means, before imprisonment for default, is also char-
acteristic of the 1967 amendments in Great Britain and should
receive particular attention from all concerned over the needless
imprisonment of persons without means to pay.
29 Penal Code of Sweden, 1965, Ministry of Justice, Stockholm, (Translation
by Thorsten Sellin) c. 25, ss. 1-3.
3oIbid., c. 35, s. 7. See also H. Goransson, in Twelfth International Penal
and Penitentiary Congress, Proceedings, Vol. V, pp. 5-6.
No. 4]
FINES
At the heart of the day-fine concept is an enquiry into the
means to pay, coupled with concrete legislative criteria for cal-
culating amounts. Under the Criminal Code an inquiry into means
is not mandatory, but discretionary. In the light of a developing
sensitivity to the unfairness of imposing fines without inquiry into
means,31 amendments to the Code should require such an exami-
nation before the fine is fixed. In addition, further study should
be made into the efficacy of the day-fine practice and the possi-
bility of adapting it to Canadian conditions 2
One further point should be adverted to before going on to
examine the actual scope of fines as a sentence in Nova Scotia.
To the extent that fines are offered as an alternative to restitution,
should there not be an express legislative preference in favour of
restitution? If social policy ought to favour reparation to the vic-
tim over a paltry fine to the state such a preference should be
stated in the Code. The Model Penal Code and the Advisory Com-
mittee both favour such a preference.3 Is it not ironic that fines,
accounting for 46% of criminal dispositions in Nova Scotia, go
to strengthen the state’s coffers while the victim gets nothing?
Indeed, the payment of the fine to the state merely serves to re-
duce the defendant’s resources and the possibility of compensation
to the victim through tort law.35
Typically, law reform bodies have not concerned themselves
so much with questions relating to the scope or amount of fines,
but with the problems of enforcement of fines. Mention has already
been made of the 1959 amendements to the Code, designed to en-
courage courts to give time for payment and to discourage the
issuing of warrants of committal as a matter of course even before
default. 6 Whether the amendments have been successful in re-
ducing the numbers of persons imprisoned for failure to pay a
31It is unconstitutional in the United States to fail to make an inquiry
into means before imposing imprisonment in default: Morris v. Schoonfield,
301 F. Supp. 158, 163 (U.S. Dist. Ct. Md. 1969).
3 2 New Zealand has been considering ways and means of adapting day-fines
to New Zealand conditions: Annual Report of the Ministry of Justice, (Auck-
land, 1968).
to Sentencing Alternatives and Procedures, op. cit., n. 14, pp. 125, 126.
33Model Penal Code, op. cit., n. 10, section 7.02(3)(b); Standards Relating
34 Infra, Table II.
35 As to the limited resources of offenders, generally, and the illusion of
compensation for criminal injuries through tort law, see M. Allen Linden,
The Report of the Osgoode Hall Study On Compensation For Victims of
Crime, Osgoode Hall Law School, (Toronto, 1968).
36 Supra, n. 7.
McGILL LAW JOURNAL
[Vol. 16
fine is not known. Certainly, in some magistrates’ courts it is rou-
tine practice to impose a fine with “x” number of days in default. 7
In some cases persons are imprisoned for failure to pay, but how
many persons had the money and refused to pay and how many
did not have the money but were imprisoned as an alternative is
not known. As a working hypothesis it can be assumed, however,
that persons who have the money do pay their fines; people do
not go to jail out of choice. Meanwhile, imprisonment of persons
who do not have the means to pay is commonplace for convictions
under provincial statutes, and, undoubtedly, as indicated by the
Nova Scotia cases, hereafter, imprisonment for failure to pay fines
occurs under federal criminal law as well. Whether or not im-
prisonment in default is rationalized on the ground that the im-
prisonment is not a punishment of the offence, but merely an
enforcement device for collection of fines, until the law prohibits
imprisonment as a routine alternative to payment of fines, and
bars the use of imprisonment as a routine response to failure to
pay, the penal law will continue to be used as an instrument of
oppression against the poor.
Concern that this should not be so has moved the Advisory
Committee of the American Bar Association, for example, to re-
commend that fines should never be levied unless the court is
satisfied that the accused has the means to pay; moreover, the
Committee disapproved of any provision which would permit al-
ternative sentences of fine or hnprisonment, for example, “thirty
dollars or thirty days”. 88 Imprisonment should not be the auto-
matic response to non-payment of fines. Instead, the Committee
recommended an inquiry into failure to pay, an inquiry at which
the defaulter ought to be called, and only where such a hearing
disclosed no excuse for non-payment would jail be considered.
Thus, imprisonment is retained as the ultimate sanction, but only
for cases showing an inexcusable failure to pay.
The Model Penal Code provisions limiting imprisonment as an
enforcement device are somewhat similar.8 9 On default, the Court
may summon the defendant and require him to show cause why
his failure to pay should not be treated as contumacious. The
Advisory Committee avoided treating the failure to pay as analo-
gous to contempt, out of fear that the more undesirable aspects
3 lInfra, at n. 91 for imprisonment in default.
38 Standards Relating to Sentencing Alternatives and Procedures, op. cit., n.
14, section 6.5, and commentary, at pp. 285-293.
39 Model Penal Code, op. cit., n. 10, section 302.2.
No. 4]
FINES
of the contempt sanction might spill over into this new area.
Instead, the Advisory Committee recommended authorizing the
Court to sentence the defaulter up to one year for failure to pay.”
Both the Model Penal Code and the Advisory Committee would
give the reviewing court power to remit all or a portion of the
fine or to modify its terms of payment.
Similar powers are now available to English courts as a result
of drastic amendments in the Criminal Justice Act, 1967.4 1 The
clear policy of the amendments is to reduce the number of per-
sons imprisoned in default of payment, and, secondly, to encour-
age a greater use of fines and a consequent drop in the prison
population 2 The issue of a warrant of committal for default at
time of conviction is all but prohibited; even the power to issue
a warrant after actual default is greatly restricted, and the work-
ing rule requires the court to hold at least one hearing into the
reasons for default. After the inquiry at which the accused must
be present, the court still may not issue a warrant of committal
unless the offender appears to have sufficient means to pay forth-
with, or the court has tried all other methods of enforcing pay-
ment without success. When the warrant is finally issued, the
magistrate must endorse thereon the grounds for issuing the war-
rant. In addition, the English Act provides for civil enforcement
of the fine by way of execution or garnishment.
Use of Fines in Magistrates’ Courts
The increasing attention paid to fines by law reform reports
such as that produced by the American Bar Association 43 reflects
an awareness of the growing importance of fines as the number
one disposition in criminal courts generally. It has been estimated
in the United States that between 75% and 80% of all criminal
convictions are disposed of by fine.4 In England, an analysis of
sentences in twelve magistrates courts by Hood 45 revealed that the
fine was the single most popular disposition, accounting for more
4o 0 p. cit., n. 38, section 6.5 and commentary at p. 289.
41 Criminal Justice Act, 1967, stats. Eng. 1967, c. 80, ss. 43-44 and 46.
42 Parliamentary Debates (Hansard), House of Commons, H.M.S.O., (London,
1966-67), 5th series, Vol. 738, at pp. 64 et seq.
43 Supra, n. 14.
44C.H. Miller, The Fine, Price Tag or Rehabilitative Force?, (1956), 2 N.P.P.A.
J. 377, at p. 378; United Nations, Short Term Imprisonment, (1960), No. 5, at
pp. 14-15.
45Roger Hood, Sentencing in Magistrates’ Courts, (London, 1962), Table
35, at p. 99.
McGILL LAW JOURNAL
[Vol. 16
than 50% of all dispositions in nine of twelve courts covered in his
survey. In 1957 in England and Wales, fines accounted for 84.8% of
all dispositions in the criminal courts; the corresponding figure for
Scotland was 73.3%.46 Undoubtedly, a very large proportion of
those cases disposed of by fines is made up of traffic offences
and summary conviction offences of a regulatory nature rather
than indictable offences of a more serious nature. This distinction
was observed in a United Nations report indicating that in the
United Kingdom in 1954 although 93% of those persons convicted
on summary conviction were fined, only one-third of those con-
victed of indictable offences were dealt with by way of fine. 7
Accordingly, it should be remembered that the above statistics,
showing a very high percentage of fines, include such summary
conviction offences as being drunk in a public place, for example,
or other offences that in Canada would fall under the Liquor
Control Acts, or the Highway Traffic Acts of the various prov-
inces. That such offences are included in the statistics relating
to the United States, England and Scotland undoubtedly helps to
explain the very high proportion of all dispositions in those coun-
tries accounted for by fines. The distortion produced by including
automobile offences in the proportion of crimes dealt with by
fines is shown by Barrett in his survey of fines in Massachusetts. 48
Although fines accounted for 77% of all criminal dispositions in
Massachusetts in 1959, exclusion of automobile cases reduced the
proportion to 30%.
Predictably, the exclusion of public drunkenness and other pro-
vincial offences in Canada should result in a very much reduced
role for fines in Canadian criminal courts. Jaffary, in an analysis
of Canadian statistics for 1955 ‘9 found that for six selected in-
dictable offences including assaults and theft related offences, fines
accounted for only 23% of all dispositions. 0 This very low per-
centage masks the fact that for assault offences in one province
fines accounted for over 75% of dispositions, while fines for theft,
and false pretences accounted for only 34% of dispositions.’ The
46Report of the Scottish Advisory Council on the Treatment of Offenders,
Use of Short Sentences of Imprisonment by the Courts, H.M.S.O., (Edinburgh,
1960), App. D., p. 32.
4 7 Op. cit., n. 44.
4 8 Robert E. Barrett, The Role of Fines in the Administration of Criminal
Justice in Massachusetts, (1963), 48 Mass. L.Q. 433, at pp. 440-441.
49 Stuart King Jaffary, Sentencing of Adults in Canada, (Toronto, 1963).
50 Ibid., p. 36.
51Ibid., Table 3, p. 34: Saskatchewan.
No. 4]
FINES
third property offence included in Jaffary’s survey, break and
enter, significantly reduced the proportion of property offences
dealt with by fines: in 1955 only 3% of all convictions in Canada
for break and enter were disposed of by fine. 2
Rusche and Kirchheimer 53 have suggested that the incidence
of fines as a disposition is related to the general level of affluence.
This correlation is difficult to find in Jaffary’s survey of the Ca-
nadian provinces. Although Nova Scotia with a per capita income
of approximately 70% of the Canadian average, used fines signi-
ficently less frequently in assault cases than Canada as a whole
(Nova Scotia approximately 48%; Canada approximately 59% in
1955),54 courts in Nova Scotia used fines in property offences even
more frequently than was the case for Canada as a whole (Nova
Scotia 14%; Canada 12%). At the same time, a rich province such
as Ontario used fines in all selected offences at a rate below the
national average. To some extent the low use of fines in Ontario
may be accounted for by a higher than average resort to suspended
sentence and probation particularly in property offences, while the
higher than average reliance on fines in Nova Scotia may have
reflected a relatively small probation service and the lack of ap-
propriate custodial facilities.
Whatever the reason, in 1967, fines continued to be the single
most popular disposition among Nova Scotia magistrates. A sur-
vey 55 of convictions for both indictable and summary conviction
offences under the Criminal Code of Canada in magistrates’ courts
in Nova Scotia in 1967 indicates that fines accounted for 58.2%
of all dispositions and in each of five out of nine offence catego-
ries accounted for over 50% of all dispositions.
What is notable is that in five offence categories, including
weapons offences, assaults, causing a disturbance, impaired driv-
ing, and wilful damage to property, fines accounted for approxi-
mately 80% of all dispositions. Even when impaired driving of-
521bid., Table 3.
5 Rusche and Kirchheimer, Punishment and Social Structure, (New York,
1939), p. 172.
54 Jaffary, op. cit., n. 49, p. 34. Further comparative figures are given by Com-
mon and Mewett, The Philosophy of Sentencing and Disparity of Sentences,
The Foundation for Legal Research in Canada, (1969), p. 10.
O5 The writer compiled a record of sentences imposed in all cases under the
Criminal Code in magistrates’ courts in Nova Scotia and New Brunswick
for 1963 and 1967, and is presently engaged in analyzing the data. The results
to date, specifically with respect to the use of fines in Nova Scotia in 1967,
are presented here in Table II.
McGILL LAW JOURNAL
[Vol. 16
Table II
Use of Fines by Offence Category, Nova Scotia, 1967
Offence
Categories
Criminal Code
Sections
Fine
%
Suspended
Sentence %
Imprisonment
%
Weapons
Offences
Causing a
disturbance
Impaired
driving
Assault and
bodily harm
Sexual offences
Theft, break
and enter,
possession
False pretences
Property
damage
Forgery
Average
82- 90
50.9
25.5
160
234
245-246
144-157
294-306
307-309-312
320-322
387-388
325-326
83.4
94.5
51.7
12.5
20.7
15.04
64.5
15.5
58.2
9.6
4.9
31.0
64.6
41.8
27.07
20.0
33.33
22.9
23.6
7.0
0.6
17.3
22.9
37.5
57.9
15.5
51.51
18.8
fences are excluded, for the remaining four categories fines ac-
counted for approximately 67% of all sentences. Four of these
five categories of offences were not included in Jaffary’s 1955
survey; without them the proportion of cases disposed of by fines
by Nova Scotia magistrates in 1967 would drop from 58% to ap-
proximately 28%.
A comparison, seen in Table III, of the use of fines in Nova
Scotia for Jaffary’s six selected offences, shows a trend toward
increased use of fines in common assault, theft and false pretences,
but a decline in break and enter.
The almost total failure to use fines in cases of break and enter
is explained in part by the fact that offences such as break and
enter, punishable by five years imprisonment or more, cannot be
dealt with by way of fines alone.r6 The same restriction applies
to false pretences and theft, except where the value of the goods
6OCriminal Code, section 646(2).
No. 4]
FINES
Table III
Incidence of Fines by Selected Indictable Offences,
Nova Scotia, 1967
Offence
1955
Fine %
1963
Common
Assault
Assault causing
bodily harm
Assaulting a
Police Officer
Theft
False Pretences
Break and
Enter
36
53
69
27
11
6
81
53.6
52
50.5
8
66.6
135
24.5
10
13.5
7
02.0
1967
59
51.7
56
46.6
18
66.6
166
30.7
20
15.04
2
0.7
Suspended Sentence 0/n
1967
1963
1955
53
30
6
38
28
28
56
37.2
37
36.0
2
16.6
260
47.1
28
37.8
125
36.6
40
35.1
30
25.0
5
18.5
206
38.0
77
57.9
153
50.8
obtained is less than fifty dollars. In cases of break and enter,
punishable as it is by 14 years or life depending on the circum-
stances, the major disposition is suspended sentence. It is proba-
ble, therefore, that a removal of restrictions on the application of
fines would see an easing of the burden now falling on suspended
sentences and probation in these cases.
As seen in Table IV, an even larger proportion of theft cases
would have been dealt with by fines were it not for the tendency
of one magistrate in particular to use suspended sentence or pro-
bation rather than a fine as the alternative to imprisonment.
In Table IV, magistrates A, B, and C heard cases in a distinct
geographical area having as its locus the metropolitan area of
Sydney, Nova Scotia. Similarly, magistrates D, E, and F heard
cases in another distinct metropolitan area, Halifax. In the latter
area per capita incomes are higher, yet the overall use of fines is
not significantly different in the two areas; what is noticeable is
the great difference in the use of imprisonment: Halifax 31.7%,
Cape Breton 50.0%. Quite clearly the Halifax magistrates appear
to be using suspended sentence, probation, or peace bond as an
alternative to imprisonment, even in indictable cases. Although
a more detailed analysis of the cases is warranted, sentencing prac-
tices in cases of theft under fifty dollars also show a fairly high
McGILL LAW JOURNAL
[Vol. 16
use of imprisonment, particularly in cases of shoplifting. No doubt,
extensive “snitching” can be a worrisome economic drain for large
department stores, but whether it is necessary in the interests of
deterrence to resort to short sentences of imprisonment is a matter
that turns on the correctional value of fines or suspended sentence.
Table IV
Use of Fines by Magistrates: Indictable Theft Cases,
Nova Scotia, 1967
[Cr. Code Section 294(a)]
Magistrate
Cases **
Convictions
27
25
24
59
28
12
3
14
29
11
5
237
Canada 1955 *
23
12
15
41
19
9
3
13
19
9
3
66
Fine
% 0
6
26.0
0
4
26.6
5
12.1
4
21.0
2
22.2
0
1
0.7
1
5.2
0
0
23
13.8
19
Suspended
Sentence %
Imprisonment
11
48.0
2
16.6
2
13.4
19
46.0
12
63.7
6
66.7
0
8
62.3
7
36.9
2
22.3
2
66.6
71
42.8
29
6
26.0
10
83.4
9
60.0
17
41.9
3
15.7
1
11.1
3
100
4
30.7
11
57.9
7
77.7
1
33.3
72
43.3
52
* Jaffary, op. cit., n. 49.
** Convictions were much fewer than the number of cases initiated by charge
as a result of acquittals, withdrawal of prosecution, dismissals, etc. A much
higher “shrinkage rate” in some courts than in others may be the result of
differences in prosecution practices, or the judges’ view oK what constitutes
“reasonable doubt”.
No. 4]
FINES
Magistrates H and J, holding court in country areas with low per
capita incomes, both used fines sparingly, but differed markedly
in the alternative disposition: Magistrate H using imprisonment in
30% of the cases and Magistrate J using imprisonment in 77% of
his cases. Although the number of cases heard by each of these two
Magistrates was nearly the same, the actual number of cases was
small, and the differences in dispositions may be accounted for by
the nature of the offences. Perhaps the most striking thing about
Table IV, apart from the differences already noted, is the extra-
ordinarily low incidence of sentences of imprisonment in the court
of Magistrates E and F. If it could be shown that the reconviction
rate for offenders sentenced by these courts was no worse than the
reconviction rates in other Magistrates’ courts, there is a lesson
to be learned.
Inexplicably, the sharp regional differences between Sydney
and Halifax are reversed in cases of assaults as can be seen in Table
V. Fines are used much more extensively in Sydney than in Halifax,
the difference being made up in Halifax by a greater use of sus-
pended sentence with the consequence that both regions use im-
prisonment in roughly the same proportion of cases.
Table V
Use of Fines in Assaults, 1967
(Cr. Code Sections 245 and 246)
Magistrate
Cases
Convictions
A
B
C
D
E
F
G
H
I
J
K
68
78
89
145
28
29
31
26
85
32
39
49
55
44
95
13
18
19
15
59
4
25
Fine
%
65.2
67.2
70.4
49.4
30.7
22.2
52.6
53.6
38.8
25.0
36.0
Suspended
Sentence
Imprisonment
% %
24.4
3.8
13.6
35.7
46.1
66.6
26.3
40.0
49.1
25.0
40.0
10.2
29.0
15.9
14.9
23.2
11.2
21.1
6.7
12.1
50.0
24.0
McGILL LAW JOURNAL
[Vol. 16
From a comparison of the tables in cases of assault and theft,
one can see that magistrates in Sydney treat imprisonment and
fines as clear alternatives, whereas Halifax magistrates tend to look
upon suspended sentence as a more viable alternative to imprison-
ment. In offences involving pecuniary gain a sharp fine within the
means of the offender to pay may well be more appropriate than
suspended sentence as an alternative to imprisonment. Crimes of
passion such as assaults, however, may not be amenable to any
disposition, in which case utility would demand the least wasteful
punishment consistent with the seriousness of the offence.
In his report on Crimes of Violence, including assaults, McClin-
tock 57 found that in England 34% of convictions for crimes of
violence in Metropolitan London in 1960 were dealt with by fine,
and another 25% by probation or discharge . 8 His report showed
throughout England and Wales a steady increase in the use of fines
in dealing with crimes of violence. For certain classes of assaults,
however, it would appear from Tables VI and VII, that fines were
used far more frequently in Nova Scotia in 1967 than in England
and Wales in 1960. 59 As might be expected, the rather low incidence
of fines in England and Wales was offset by a rather heavy use of
imprisonment.
Table VI
Indictable Assaults in Nova Scotia, 1967
Offence
Common Assault
Assault causing
bodily harm
Assaulting a
Police Officer
Fine
59
51.7
56
46.6
18
66.6
Suspended
Sentence %
Imprisonment
40
35.1
30
25.0
5
18.5
15
13.2
34
28.4
4
14.9
The heavy reliance on fines in Nova Scotia is not carried forward
from assaults to sexual offences. Although the very low number of
cases dealt with by magistrates’ courts make it difficult to draw
57 F. H. McClintock, Crimes of Violence, (London, 1963).
58 Ibid., at p. 152.
59 Ibid., at p. 159.
No. 4]
FINES
Table VII
Assaults in England and Wales, 1960
Circumstances
Attack on police
Domestic dispute
Pub fights
Street fights
Fine
18
38
38
42
Probation
and Discharge
Imprisonment
15
40
13
25
64
20
42
23
firm conclusions, it appears that suspended sentence was used in
64% of the cases, fines in 5% and imprisonment in 32% of the cases.
Ten of the 71 cases were committed to trial in higher courts, 8 cases
were acquitted and 6 withdrawn. The group does not include rape
cases since these would be tried in the higher courts. Six of the
twelve cases disposed of by imprisonment resulted from convictions
for indecent assault on a female, two for statutory rape, three for
gross indecency and one for a homosexual offence.
What stands out in this disposition of sexual offences is the
exceptionally low use of fines in contrast with the reliance placed
on fines for these offences in Toronto and in England. According
to the survey conducted by the Cambridge Department of Criminal
Science in England, 43% of all sexual offences were dealt with by
fines; 6O the 1957 Toronto figures arrived at in a study by Mohr,
Turner and Jerry indicated a 53% use of fines.0 ‘ To the extent that
criminal sexual conduct is no more than normal consensual activity
that happens to be prohibited under an out-dated Code, as in the
case of some intercourse with consent of females under a specified
age, or certain cases of consensual homosexual conduct, a high use
of fines may be entirely appropriate as a minimal expression of
official disapproval. Where, however, the forbidden sexual conduct
is the result of immature dependency or other medical factors, sus-
pended sentence with a condition of treatment at psychiatric clinics
GOA Report of the Cambridge Department of Criminal Science, Sexual
Offences, (London, 1957), at p. 218.
011. W. Mohr, R. E. Turner and M. B. Jerry, Pedophelia and Exhibitionism,
(Toronto, 1964), at p. 104. 68% of persons convicted for indecent expo-
sure were fined: ibid., at p. 169; see also Common and Mewett, op. cit., n. 54 in-
dicating a relatively high use of fines for selected sexual offences, but a very
limited use in most sexual offences.
McGILL LAW JOURNAL
[Vol. 16
was recommended by Mohr, Turner and Jerry.2 Considering that
sexual offenders have one of the lowest reconviction rates of all
offenders the court policy of using fines or suspended sentences
in the great majority of these cases is well founded.
To summarize the position of magistrates’ courts for Criminal
Code offences in Nova Scotia in 1967, fines were the single most
popular disposition, accounting for approximately 58% of all sen-
tences following conviction. Table VIII shows the proportion of
fines used in three major categories. Even when the automobile
offences are excluded, fines still constitute the leading disposition,
at 42.9%, of all convictions in the offences surveyed. If automobile
offences are classed as offences against public order along with
causing a disturbance and obstructing a police officer, the predom-
inance of fines is seen to lie in the fact that they are highly utilized
in offences against the public order. Even in the chief offences
against the person, assaults and sexual offences, fines accounted
for almost 50% of the dispositions, but gave way to suspended sen-
tence and imprisonment in property offences. Moreover, fines would
not figure as prominently as they do in this last category were it
not for the inclusion of cases relating to mischievous and wilful
damage to property, approximately two-thirds of which were dealt
with by fines. If offences of mischievous damage to property are
excluded, use of fines in property cases in Nova Scotia drops to
17%, a rate close to the 16% cited by Barrett as the proportion
of property offences in Massachusetts dealt with by fines. Barrett’s
Table VIII
Distribution of Fines by Major Categories,
Nova Scotia, 1967
Offence
Category
Public Order
Personal violence
Property
Fine
%
89.4
47.4
27.3
Suspended
Sentence %
Imprisonment
%
7.0
34.6
36.4
3.6
18.2
36.2
62 Ibid., pp. 105, 169. Reconviction rates for sexual offenders are low:
Mohr et al., ibid., at pp. 98-99; 167-168; Sexual Offences, op. cit., n. 60, at p. 315.
Less than thirty per cent of offenders under study were reconvicted during the
follow-up period. Recidivist rates for the United Kingdom among persons
sentenced to imprisonment approximate 50%: Short Term Imprisonment,
op. cit., n. 44, at p. 23.
No. 4]
FINES
figures, however, do not appear to include false pretences, robbery
or forgery, all of which in Nova Scotia tend to have a major
dampening effect on the rate of fining in property offences gener-
ally.
Justification for Fines As the Primary Sentence
Whatever reasons magistrates may have for using fines as the
primary sentencing tool under the Criminal Code, from a correc-
tional or penological point of view, fines make good sense. The aim
of sentencing is to achieve the objects of the criminal law, that is
“the punishment of the offender and the prevention of further
criminal acts”, and to do so in “the most efficient, least expensive
and most humane” 13 way.
Until recently, in the absence of empirical evidence, there existed
a popular belief in the deterrent or rehabilitative effect of punish-
ment as a means to preventing further criminal acts. Punishment
involving imprisonment was thought to act as a strong deterrent,
and punishment involving training, treatment and re-education was
thought to be effective in reforming and rehabilitating the offender
so as to prevent further breaches of the law. Penitentiary and other
penal institutions endorsed training, educational, and treatment
programs in an attempt to meet these objectives. To be sure, no
scientifically controlled studies had demonstrated the success of
the deterrent or treatment theories, but common sense and reason
pointed the way.
The harsh reality of imprisonment, even under the new theories,
brought penal treatment and training programs into question. 4
Difficulties arose in establishing trades training programs and in
certifying prisoners as qualified in useful trades; psychiatric and
other treatment services were even more difficult to secure; 65
63W. B. Common and A. W. Mewett, The Philosophy of Sentencing and
Disparity of Sentences, The Foundation for Legal Research in Canada, (June,
1969), at p. 2. On the limits of prevention, see H. L. Packer, The Limits of the
Criminal Sanction, Stanford U. Press, (Stanford, 1968), at p. 66.
6 H. L. Packer, op. cit., n. 63, at p. 55; and Nigel Walker, Sentencing in a
o6 Proceedings of the Joint Senate and House of Commons Committee on
Rational Society, (London, 1969), at p. 132.
the Penitentiaries, (Ottawa, 1967) No. 6, Friday, February 17, 1967, at pp. 243-244.
Third United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, Special Preventive and Treatment Measures for Young Adults,
(1965), at p. 15; Use of Short Sentences of Imprisonment, op. cit., n. 46, at pp.
12-13.
McGILL LAW JOURNAL
[VoL. 16
finally, the deleterious effects of imprisonment on the prisoner,
his family and the community were not balanced by any visible
improvement in recidivist rates 6
Hard evidence now suggests that imprisonment is the least
effective penal sanction and that fines are the most effective. In a
study of reconviction rates for convicted offenders in Metropolitan
London 0 7 it was found that of all sentencing measures for both first
offenders and recidivists of almost all age groups, fines had the
lowest reconviction rate. The study also showed that heavy fines
were followed by fewer reconvictions than light fines of less than
1 pound. Surprisingly, the next most effective penal sanction in
terms of reconviction rates was absolute or conditional discharge,
sanctions not available under the Canadian Criminal Code. Even
more surprising was the fact that probation was shown to have a
reconviction rate even worse than imprisonment, although for of-
fenders convicted of breaking and entering, probation was found to
be the most effective disposition. Fines were found to be particularly
effective in cases of larceny.
This favorable reconviction rate for fines was shown again in a
study of 567 female offenders in the London Metropolitan Police
District in 1957. Goodman and Price 68 found that for first offenders
women put on probation did much worse than expected whereas
those who were discharged (absolute or conditional) or fined had
lower reconviction rates than expected. The results for women with
previous records indicated that imprisonment resulted in the worst
reconviction rate, discharge, the best, followed by probation and
fines.
Unlike the study conducted by Hammond, the latter study by
Goodman and Price did not make allowances for established vari-
ables in reconviction rates; namely that other things being equal,
females are less likely to be reconvicted than men regardless of what
sentence is used, the longer the previous record the more likely is a
reconviction, the more time spent in prison the more likely is a
reconviction, reconviction rates for certain offences, for example
breaking and entering, are likely to be higher than in other offences
such as sexual offences.69 Nevertheless, the study by Goodman and
16 See Wilkins, infra, n. 69.
67The Sentence of the Court, H.M.S.O., (London, 1964), Part VI, at pp. 40,
4849.
1967), Table 8, at p. 59.
68N. Goodman and J. Price, Studies of Female Offenders, H.M.S.O., (London,
69 Nigel Walker, op. cit., n. 66, pp. 93-94; Leslie T. Wilkins, “A Survey of
the Field from the Standpoint of Facts and Figures”, The Effectiveness of
No. 4]
FINES
Price serves to support the view that fines, particularly in shop-
lifting and other thefts, are probably the most effective sentencing
measure.
Favorable reconviction rates for fines and discharge may be the
result of selective sentencing rather than anything else. That is to
say, the courts select for discharge or fine those predictably good
risks whose offence does not call for any strong deterreit measure.
From this point of view, the reconviction rates simply show that
judges make good predictions. The difficulty with this attractive
explanation is that it does not account for probation having the
worst reconviction rate – worse even than imprisonment. Probation
officers and magistrates tend to select for probation those offenders
whose record indicates some real hope for reform, a man who is
likely to mend his ways. Do the results of the studies mean that
judges are bad predictors when it comes to probation ? Do the
studies suggest that probation actually prejudices a man’s chances
of going straight? At least for some offenders? 7o
The position of fines as a primary sentence in magistrates’ courts
has been further strengthened by fresh assaults on the reality of
deterrence and the foundation on which it rests: Bentham’s Calculus
of pleasures and pains. Punishment, principally imprisonment, was
based on the assumption that man as a logical rational creature
would choose courses of conduct likely to produce, on balance,
pleasure rather than pain. Hence, conduct prohibited by threats of
penal sanction was more likely to be avoided in favor of more
pleasurable options. The greater the attractiveness of the prohibited
conduct, the greater the threatened punishment was needed to strike
the desired balance. A rash of crimes of a particular nature in a
particular district, accordingly, would be met with increased de-
terrent sentences. Official state conduct assumed a correlation
between deterrence and threatened pain.
A recent report by the California State Assembly 71 is the latest
of a series of challenges to the assumption of special and general
deterrence. In a country noted for its extensive use of imprisonment
and long prison terms, California was shown to be fifth highest in
Punishment and Other Measures of Treatment, European Committee on
Crime Problems, Council of Europe, (Strasbourg, 1967), pp. 42-48, which
involves a general discussion of the direct relation between time spent in
jail and the likelihood of reconviction.
70 Hood, infra, n. 74, at pp. 110-112.
71 Deterrent Effects of Criminal Sanctions, Progress Report of the Assembly
Committee on Criminal Procedure, (Sacramento, May, 1968).
McGILL LAW JOURNAL
[Vol. 16
severity of sentences. Yet, for the twelve largest states of the Union,
there was no correlation between severe penalties and lower crime
rates7 2 Frequency of crime was lower, for example, in Texas, showing
a median of time served in custody of 17 months than in Illinois, a
state showing the second highest median time served in custody,
namely, 29 months.73 California, ranking fifth highest in the nation
in severity of penalties, had the highest crime rate of the twelve
largest states. The policy of severe sentences was unjustified in the
face of the evidence.
The report pointed out that the failure of general deterrence
was markedly apparent in cases of assault on police and marijuana
offences. In both instances the conduct in question had been the
subject of continued public debate and legislative action resulting
in a substantial escalation of penalties over a five year period. Yet
the attacks on police in Los Angeles increased by 90% during that
period and the arrest rates for marijuana offences increased six
times.
The assumption that the public has an awareness of criminal
penalties and governs itself accordingly is not borne out by the
evidence. Not only was the public in California generally ignorant
about severity of criminal penalties, scoring correctly on only 2.6
out of 11 questions on this matter, but significantly, 50% of the
persons queried stated that they had no knowledge respecting recent
legislative action increasing penalties for rape, robbery and burgarly
with violence.
The California Committee report concluded that not only do
threats of severe punishment fail to deter offenders generally, as
shown by the crime rates, but punishment actually executed bears
little or no correlation to recidivism. Following the Gideon decision
by the United States Supreme Court, the State of Florida released
1,252 indigent prisoners long before their normal release dates.
In a follow-up study it was found that the recidivism rate, 28
months after discharge, was 13.6% for the Gideon group and
25.4% for a full-term release group. Similar results were obtained
in California for a group of women offenders released on parole
at an accelerated release date.
In the United Kingdom a comparison of the recidivism rates for
young persons sentenced to four months imprisonment with a
matched group of Borstal boys in custody for eighteen months
and over showed that the longer terms of custodial restraint made
72 Ibid., “Crime and Its Penalties in California”, at pp. 26-27.
73 Ibid.
No. 41
FINES
no observable difference in recidivism rates 4 In other research,
a comparison of reconviction rates of offenders placed on probation
by a court using a high rate of probation with reconviction rates
of offenders from another court using the normal range of sentences
in matched cases showed no difference in the overall reconviction
rates.75
More recently, in New Brunswick, in order to ease the pressure
on the local prisons a selected group of prisoners were released
on parole. All but a few completed the parole period without de-
fault. Since this was not a controlled study it is not known how
many of the men who successfully completed parole committed a
subsequent offence.
Respecting offenders under sentence, the conclusion may well
be that “success and failure are more related to the offender’s
personality than to the type and severity of the sentence he
receives.1 76 Consistent with this conclusion comes the statement
based on research conducted by the California Youth and Adult
Corrections Agency that “many, perhaps most, offenders can be
supervised in the community.”77
Neither severity of punishment nor type of punishment shows
a correlation with crime rates or recidivism rates; what then is
left of Bentham’s model of a rational man computing his options
of pleasure and pain? If rational calculation is not the basis of
criminal conduct, particularly in crimes of passion, such as assault
or sexual offences, is deterrence as a criterion in sentencing irrele-
vant? If it is irrelevant then the sentence should be the least
expensive and most humane having regard to the demands of
retribution. Particularly where crimes are the result of a com-
pulsive determinism or the product of disease, fines or probation
orders are more humane and less expensive than imprisonment.
It would be a mistake, however, to say that deterrence, particu-
larly general deterrence, has been disproved; for one thing, the
evidence does not disclose what the crime rates would have been
had the law not punished offenders at all. For another thing, as
74R. Hood, “Research Into Effectiveness of Punishments and Treatments”,
Second European Conference of Directors of Criminological Research Insti-
tutes, Council of Europe, (Strasbourg, 1965), pp. 99, 106.
75 bid., at p. 108. See also: J. Robison and G. Smith, The Effectiveness
of Correctional Programs, (1971), 17 Crime and Delinq. 67.
76 Ibid., at p. 109.
77Deterrent Effects of Criminal Sanctions, op. cit., n. 71, at p. 34.
McGILL LAW JOURNAL
[Vol. 16
Packer points out,.7 while man is probably not to be thought of
in terms of Bentham’s simple calculus, neither is he an impulse-
ridden creature, untouched by rationality. Packer’s view is that
deterrence is a “complex psychological phenomenon meant primarily
to create and reinforce the conscious morality and the unconscious
habitual controls of the law abiding.” 71 This view takes recognition
of the fact that both Bentham and his critics have contributed
to the development of a sounder understanding of deterrence, one
that accords with experience and with science. People obey the
law not so much because of rational decisions to avoid a calculated
risk, they are held in check by inner controls developed through
socialization processes at home, at school, and at church. Partly
through unconscious
inhibitions, partly from a conscious con-
templation of disgrace men turn aside from crime. “… [W]e auto-
matically and without conscious cognition follow a pattern of
learned behaviour that excludes the criminal alternative without
even thinking about it.” 80
From this point of view, the criminal law and its processes take
on the quality of high drama, reinforcing in men the value-system
that disposes them to legitimate conduct. The deterrent aspects of
the criminal law are not focused wholly in the sentence, but take
their bite from the shame of detection and the disgrace of trial.
The sentence, providing it is not so minimal as to weaken faith
in the system, can be selected on the criteria of humanity and least
wastefulness. By this means the state avoids the costs of imprison-
ment, and the burdens of welfare payments in support of the
offender’s family; the offender avoids the destructive impact of
prison life, not the least of which is the criminal self-image developed
through association with prison inmates. So it is that department
store employees convicted of theft, or white collar criminals gener-
ally, tend to be sentenced by way of suspended sentence or fine.
Nothing more is needed; the trial as a kind of morality play has
provided an opportunity for the public vicariously to share in an
experience that reinforces inner controls in denouncing wrong and
upholding right.
The foregoing affirmation of the claims of general deterrence
lends support to the policy of using fines or some other humani-
78H. L. Packer, The Limits of the Criminal Sanction, Stan. U. Press, (Stan-
ford, 1968), at p. 41.
79 Ibid., at p. 65.
80 Ibid., at p. 43.
No. 4]
FINES
tarian and non-wasteful form of punishment in a high proportion
of cases in magistrates’ courts. At the same time, in spite of the
general criticisms raised against it, special deterrence may also
be shown to support a policy of fines in these courts. The case
against special deterrence was that despite being punished, large
numbers of offenders offended again; recidivism rates remained
high even in the face of severe penalties. However, it has been
suggested, of all punishments, fines appear to result in a lower
reconviction rate generally.
This may be interpreted to mean that fines have a greater special
deterrent effect than other punishments, or it may simply mean
that fines are less likely to lead offenders further along the criminal
pathway than probation, for example, or imprisonment. Moreover,
it does not necessarily follow from a recidivism rate of 40%, for
example, that punishment had no deterrent effect on the other
60%. Those offenders may have been individually deterred, or
they may have simply “matured”, a phenomenon well-recognized
by criminologists. The simple fact is that not enough is known about
punishment and deterrence to permit of more than tentative con-
clusions at this point.
Common sense and experience suggests that punishment does
deter some offenders under some circumstances. Chambliss 8I re-
ported a study of violation of automobile parking regulations,
indicating that where the severity of punishment was sharply
increased along with a substantial increase in risk of apprehension,
violations decreased significantly. Hammond “I also reported that
sizeable fines tended to deter while light fines did not.
Reason suggests that exposure to the criminal process and
punishment is more likely to act as a deterrent with certain types
of offenders than with others. Just as general deterrence is likely
to have the greatest impact on stable personalties sharing middle
class values and susceptible to the shame and disgrace attending
criminal proceedings, so individual offenders caught up in the
criminal process are likely to be deterred by the experience to the
extent that they share middle class values, have stable personalties
and a low commitment to the criminal conduct in question. On the
other hand, offenders driven on by inner urges, lacking a well
developed set of inner controls, or who reject the values and goals
81 W. J. Chambliss, Crime and the Legal Process, (New York, 1969), at p. 388.
82The Sentence of the Court, “A Handbook for Courts on the Treatment
of Offenders”, H.M.S.O., (London, 1964), at p. 48.
McGILL LAW JOURNAL
[Vol. 16
of the system and deliberately engage in criminal conduct as a
way of life are not likely to be deterred by the publicity of trial
or the pain of the punishment. 3
It follows that individual or special deterrence would have
the greatest effect on offenders described by Chambliss as having
a low commitment to crime. 4 Such offenders would not see them-
selves as criminals or committed to a course of conduct designated
as criminal. At the same time, criminal conduct of an impulsive
nature, for example, assaults, sexual offences, and some homicides
is not likely to be deterred by punishment. It is more probable
that special deterrence would be operative where the accused, while
having a low commitment to crime, was engaged in a property
offence rather than an offence against the person.”‘ Where persons
convicted of property offences, however, have two or more pre-
vious convictions it is not likely that special deterrence will have
any effect.
In magistrates’ courts, then, the single most important function
of the criminal process is its educative effect, its general deterrent
effect, on the community generally; the most educative force in
the process is the publicity of the trial itself rather than the severity
of sentence. Consequently, having due regard to the risk of de-
preciating the criminality of the conduct in question, sentences
should be selected on a principle of humanity and least waste.
Except in particular cases calling for strong condemnation, or
rehabilitative or treatment services as disclosed by thorough pre-
sentence investigation, policy requires the imposition of probation
or fines.
On the basis of the above policy a case can be made for a greater
use of fines by magistrates in Nova Scotia. Five of the nine offence
categories in Table II relate to offences of a more or less minor
character: offences against the public order, causing a disturbance,
automobile offences, and mischievous damage to property. It
is
difficult to imagine any but the most severe cases being such a
threat to public security as to demand imprisonment. Yet 13%
of convictions for causing a disturbance, 21% of convictions for
wilful damage to property, and 30% of offences against public
order resulted in short jail terms. Does general deterrence require
such a heavy toll? At what point does the educative function of
83W. J. Chambliss, Types of Deviance and the Effectiveness of Legal
Sanctions, [1967] Wisconsin L.R. 703, at p. 713.
84 Ibid.
85 Ibid.
No. 4]
FINES
apprehension, trial, conviction and sentence exact too heavy a
punishment, resulting in waste and injustice? Neither general
deterrence nor specific deterrence requires the imprisonment of
vagrants or persons found drunk or swearing in a public place.
Suspended sentence and judicious fines already account for 86%
of all such convictions; why such dispositions should be any less
than 99% as in automobile cases is difficult to imagine. Can it
be seriously advanced that under the guise of vagrancy, prostitutes
should be picked up and jailed for health or safety reasons, or
that drunken or noisy persons should be jailed for their own
protection? A more detailed analysis of the convictions in these
categories might well reveal an unwarranted reliance on short
jail terms for offenders who are not susceptible to deterrence and
the circumstances of whose offence do not require a severe penalty
in the interests of general deterrence. No pretence should be made
that short terms in the old county jails are rehabilitative; detention
behind their walls may deter some, but the general view is that
the destructive quality of prison life tends to drive the prisoner
deeper into crime.8 6
Another category of offences warranting further examination in
the light of a policy favoring fines are the expressive crimes of
assault and the various sexual offences, excluding rape. In most
cases these crimes of passion or compulsion are not deterrable
by threats of punishment nor are the individual offenders upon
conviction likely to be deterred by severe penalties. In these offences
the deterrence arises from the publicity of the trial more than the
sentence. Only the most serious offences warranting severe com-
munity condemnation should result in imprisonment. Cases of
exhibitionism, pedophelia, indecent assault, or homosexual acts
between consenting males do not greatly harm the public safety.
Such conduct may shock some people, it may disgust others, but
in most instances the conduct is relatively harmless to the victim,
or may even have been invited by the “victim”; generally, such
offenders may best be dealt with by probation orders or fines.8 7
In addition, a really significant increase in the use of fines might
well be made in theft and false pretences. The present statutory
prohibition against fines only in cases involving property of $50
or more should be removed and a policy of judicious fining irre-
spective of the value of the stolen goods should be tried in an
8GReport of the Canadian Committee on Corrections, Queen’s Printer,
(Ottawa, 1969), pp. 307, 314-318, 499-501.
87Mohr et at., op. cit., n. 61; Sexual Offences, op. cit., n. 60.
McGILL LAW JOURNAL
[Vol. 16
attempt to reduce the heavy reliance on prison terms in this area.
Both the Model Penal Code 18 and the American Bar Association,89
it will be recalled, recommended fines as appropriate sentences
for property offences; Parliamentary action should not be delayed.
What is the advantage to society in jailing shoplifters and petty
thieves? In view of the evidence indicating that this group of
offenders responds well to sharp fines, humanity and considerations
of least waste should be the guiding criteria: retribution is not
called for. Yet a consideration of Table VI shows an over-reliance
on imprisonment for convictions arising under section 294 of the
Criminal Code. In the same geographical region one magistrate
used imprisonment for 50% of all thefts and another used it in
only 13% of cases of stealing. The highest use of fines or suspended
sentence was 96% in magistrate F’s court, while a hundred miles
away magistrate A used suspended sentence or fines in only 36%
of all convictions. The reasonableness of such evident differences
in policy between courts depends upon a detailed examination of
the cases involved, but there is some reason to think that security,
the public safety, and respect for the integrity of the system of
justice can be maintained with a low rate of imprisonment for
offences arising under section 294. Common sense requires a re-
examination of sentences in this area.
Imprisonment in Default
To what extent would a policy of increased use of fines result
in increased imprisonment for failure to pay? At the present time
the practice of the courts is to impose a fine or a certain number
of days in default. In most cases no enquiry is made before sentence
into means to pay, although in some courts immediately after
sentence, either at the initiative of the offender or the magistrate,
time to pay is granted. In one month in one of the Halifax magis-
trates’ courts 151 persons were given time to pay. This figure
included a very large proportion of offences arising under provincial
statutes, namely, the Liquor Control Act and the Highway Traffic
Act. In the same month in the same court 14 warrants to commit
in default of payment were issued, two of these 14 cases arising
under the Criminal Code. In another metropolitan court it is es-
timated that 92% of persons fined pay within the time allotted.
Of the defaulting 8% (including again a very high proportion of
88Model Penal Code, op. cit., n. 10, section 7.02.
89 American Bar Association, Standards Relating to Sentencing Alternatives
and Procedures, (1967), ss. 2.7, 117, 125.
No. 4]
FINES
offences under the Highway Traffic Act and the Liquor Control Act)
approximately one-quarter are never located, 69% pay when the
police arrive to serve the warrant of committal, and another 6%
go to prison for failure to pay. Most of these offenders were
convicted under the Highway Traffic Act of offences relating to
ill-equipped vehicles, but were to pay fines in the $50 range.
A random survey of the cases arising under the Criminal Code in
magistrates’ courts in rural Nova Scotia reveals that even for
impaired driving offences or driving while disqualified, for example,
in one magistrate’s court alone approximately fifteen sentences
of “$80 or 30 days”, resulted in imprisonment. Another offence
resulting in a surprising number of committals in default of pay-
ment is under section 373: wilful damage to property. In some
cases fines as low as “$10 or 20 days” or “restitution or 1 month”
have resulted in persons going to jail instead of paying the fine.
Even more surprising are the cases, few in number, of persons
convicted of vagrancy and being sentenced to “30 days or $75”
or upon being convicted of obstructing a police officer and fined
“30 days or $50” are committed in default of payment. Another
group of cases resulting in imprisonment in default of payment
of fines arise under the theft section 294(b). Under this section
fines of “$100 or 2 months”, or even “$35 or 1 month” resulted
in committals. The clear impression emerges of a correlation be-
tween per capita income and the number of cases of imprisonment
for failure to pay fines. In the Halifax courts, imprisonment in
default is confined to a few cases. In the less wealthy areas of
the province more poor people go to jail for lack of money.
Whether the poor are committed to prison as a means of en-
forcing payment of the fine or whether the imprisonment is an
alternative punishment is not clear. Historically, fines were a means
of raising revenue for the King, and imprisonment was used in an
attempt to compel the “making of fine”. Since the prisons were
self-supporting, imprisonment was the least expensive punishment.
By Coke’s time, however, the character of the fine had changed
somewhat and the modern terminology of “being fined” rather
than “making fine” reflected a shift in attitude 0 Imprisonment
was looked upon as an incident of a fine, and the cancellation of
a portion of the fine for every day served in jail suggested that
imprisonment was not being used as an enforcement measure, but
as a substitute punishment. Today, however, it is not necessary
90D. A. Westen, Fines, Imprisonment, and the Poor: “Thirty Dollars or
Thirty Days”. (1969), 57 Calif. L.R. 778, at pp. 783-787.
McGILL LAW JOURNAL
[Vol. 16
to use fines as a revenue measure, and from a correctional point
of view, the considerations giving rise to a sentence of fine are
quite independent of those leading to a sentence of imprisonment.
In any event, imprisonment either as a means of enforcing pay-
ment of fines or as an alternative punishment in default needs
re-examination.
The scant Canadian authority on the legal basis of imprisonment
in default of payment of fines suggests that imprisonment is re-
garded as an alternative punishment. 91 The observation was made
without elaboration in the Saskatchewan Court of Appeal on con-
sideration of an appeal from sentence of $100, payable in six
months or three years’ imprisonment in default, a term well within
the statutory maximum of five years. In allowing the appeal and
substituting a short term of imprisonment in place of the original
sentence, the court pointed out that three years’ imprisonment
as an alternative punishment was not proportional to the amount
of the fine. Since the statutory maximum had not been exceeded,
the Court was apparently reading into the Code provisions a standard
of fundamental fairness akin to due process or equality before
the law.
Support for the theory that imprisonment is conceived of as an
alternative sentence can be found in Paley on Summary Con-
victions; 92 in referring to the English practice the author states:
“At the time the decision of the court imposing a fine is pronounced
the alternative terms of imprisonment in default should be stated
for the information of the defendant.” 93 Under the Criminal Justice
Administration Act, 1914,49 then obtaining in England, a statutory
scale limited the term of imprisonment that could be imposed in de-
fault. Corresponding statutory limitations under the present Cana-
dian Criminal Code restrict the term in default in summary convic-
tion cases to six months 95 which is also the maximum term where
imprisonment is imposed in the first instance, while for indictable
offences the Code limits imprisonment to two years for offences
punishable by less than five years and five years for offences
punishable by five years or more.96
91 Rex v. Sydorik and Zowatski, [1926] 3 W.W.R. 458.
92 Ed. B.V. Bateson, 9th ed., (London, 1926).
93Ibid., at pp. 404-405.
944-5 Geo. 5, c. 58.
95 Section 722(2).
96 Section 646(3)(b).
No. 4]
FINES
In the United States the majority view appears to be that
imprisonment in default is a means of enforcing payment 97 and
is not part of the penalty for the offence, although there is some
authority going the other way. 98 Difficulties arise where poor persons
are routinely fined and imprisoned in default; without doubt it is
irrational to imprison an offender without means to pay on the
theory that imprisonment will force him to pay.
The problem is not solved by adopting imprisonment as an
alternative punishment as the basis for committal in default. From
a sentencing point of view the whole basis of fines, suspended
sentences, probation orders, or conditional and absolute discharge
is the fact that they are alternatives to imprisonment. One or
other of the dispositions is selected with the clear decision in mind
that imprisonment is neither necessary nor desirable in the instant
case. Many considerations enter into this initial determination
including questions of general and special deterrence, rehabilitation,
retribution or incapacitation. Fines are not normally selected where
considerations of incapacitation, for security reasons, or substantial
rehabilitation programs are necessary; neither are fines generally
selected where strong condemnation is called for. That is, fines are
selected where for one reason or another imprisonment or treatment
programs under probation orders are not necessary. What irrational
impulse then directs that a sentence of a fine routinely be imposed
along with an alternative sentence of imprisonment?
What a needless burden is thrown upon the taxpayer by this
force of habit. Consider the earlier examples given of imprisonment
in default, keeping in mind that it costs the taxpayer approximately
$20 a day to keep an offender in jail, welfare and family main-
tenance costs being additional burdens: obstructing a police officer:
“$50 or 30 days”; vagrancy: “$75 or 30 days”; theft: “$35 or 30
days”. The cost of imprisoning poor people in default under cir-
cumstances where the court has already decided that imprisonment
is neither necessary nor desirable is a luxury the taxpayer can
hardly continue to afford.
From the indigent offender’s point of view, imprisonment in
default is not an alternative punishment in the sense that he has
97 The People v. Saffore, 18 N.Y2d 101 (1966); 271 N.Y.S.2d 972; 218 N.E.2d
686 (Court of Appeals of New York), where the use of imprisonment for such
a purpose was disallowed.
9SDixon v. State, 2 Tex. 481 (1849); Chapman v. Selover, 225 N.Y. 417 (1919),
122 N.E. 206. In the latter case it was held, at p. 207, that the punishment
was to include the consequences flowing from default on the fine.
McGILL LAW JOURNAL
[Vol. 16
any real choice in the matter. Poor people do not default in payment
of fines because the jails are an improvement over conditions at
home; they are forced into jail through poverty. Routine imposition
of sentences of fine with imprisonment in default places the rich
man and the poor man on an unequal footing before the law.
On its face a fine with imprisonment in default appears equitable;
in practice it works an invidious discrimination against the poor
man, depriving him of liberty, and adding to his burdens the dis-
grace of being in jail, the separation of his family, and forcing him
to consort with confirmed criminals eager to enlist him into their
ranks and to maintain contact with him at the end of his prison
term. In contrast, for half a day’s pay, at the most a week’s pay,
a man of greater affluence purchases his liberty and protects his
position.
Under the guarantees afforded by a Bill of Rights including the
Canadian Bill of Rights the legality of imprisonment of poor people
in default of payment of fines is a matter of considerable im-
portance. In the United States litigants have sought the protec-
tion of both the due process and equal protection clauses of
the Constitution. Both of these clauses have been held to pro-
hibit the arbitrary selection of a class of persons as the target
of special burdens.99 The constitutional guarantees require that
governmental action and classification bear a rational relation-
ship to the goals to be achieved. If the goal of the imprisonment
is, as stated in the majority of cases, enforcement of payment of
the fine, then clearly the action is not rationally related to the
objective. Imprisonment of persons known to be without means can-
not rationally be expected to be effective in collection of fines. The
imprisonment has no capacity to compel payment: it is arbitrary and
denies poor people due process and equal protection of the law.100
The New York Court of Appeals in The People v. Saffore ‘ll
considered the question at issue here and concluded that “[s]ince
imprisonment for nonpayment of a fine can validly be used only
as a method of collection for refusal to pay a fine we should now
hold that it is illegal so to imprison a defendant who is financially
99 Loving v. Virginia, 388 U.S. 1, 8-9 (1966), Kelly v. Schoonfield, 285 F. Supp.
732, 736-737 (1968).
10o The People v. Collins, 261 N.Y.S.2d 970 (Orange Co. Ct. 1965); People
v. McMillan, 279 N.Y.S.2d 941 (Orange Co. Ct. 1967); in State v. Allen, 249
A.2d 70 (1969), at p. 75, Mr. Justice Conford, in a dissenting opinion, said that
incarceration for failure to pay a fine was unconstitutional as a deprivation
of both due process and equal protection.
101 Op. cit., n. 97.
No. 4]
FINES
unable to pay.102 The actual holding of the court was confined
to the facts of the case where the imprisonment in default exceeded
the maximum term of imprisonment to which he could have been
sentenced in the first instance:
[W]hen payment of a fine is impossible and known by the court to be
impossible, imprisonment to work out the fine, if it results in a total
imprisonment of more than a year for a misdemeanor is unauthorized
by the Code of Criminal Procedure and violates the defendant’s right to
equal protection of the law, and the constitutional ban against excessive
fines.103
Notwithstanding that the decision could have been reached on
a strict interpretation of the New York statute, the court went
out of its way to give approval to the constitutional arguments
based on due process, equal protection, and excessive fines. The
decision was a clear indication of how the courts might deal
with future cases, but some subsequent decisions show an un-
willingness to extend the reasoning in Saftore.104 Finally, even
where imprisonment in default does not exceed the statutory limit,
it will be equally ineffective in compelling payment and defendants
should be equally entitled to constitutional protections.
Where, as in Canada, imprisonment in default is regarded as
an alternative punishment, equal protection and due process as
interpreted in the United States would require that it be rational
to sentence one class of persons, the poor, to a different punishment
than those who are not poor. The United States Supreme Court
has held that classifications based upon wealth and affecting fund-
amental liberties are “suspect”. The approach that the United
States Supreme Court appears to be taking is to balance the interests
involved, and if benefits involved in support of the classifications
are not substantial but the injury to other interests is great, then
102 Ibid., at p. 974.
103Ibid., at p. 975.
104 In State v. Lavelle, 255 A.2d 223 (1969), at p. 230, this constitutional point
was argued by Proctor, Jacobs, and Schettino, JJ. dissenting (Sup. Ct. NJ.);
in Sawyer v. District of Columbia, 238 A.2d 314 (1967) it was held that im-
prisonment for default in the paying of a fine would exceed the maximum
possible sentence and was accordingly not allowed; in Morris v. Schoonfield,
301 F. Supp. 158 (U.S. Dist. Ct., S. Md. 1969), such a sentence was held to
be unconstitutional, not on its face, but because the prisoner did not have
a chance to tell the judge of his indigent status. If he had had the oppor-
tunity to so inform the judge, then a sentence to imprisonment for default
in paying the fine would not have been found unconstitutional. More recently
the California Supreme Court has moved to prohibit the jailing of the accused
where failure to pay the fine was due to poverty: In re Antazo, 473 P.2d
999 (1970).
McGILL LAW JOURNAL
[Vol. 16
the classification will be found to be an invasion of the equal
protection- and due process clauses. Thus, where the state of Illinois
required indigent offenders to pay a fee to get a transcript on
appeal, the benefits accruing to Illinois in collecting the revenue
were not found to be substantial in the face of the injury to poor
persons in being effectively barred from the appeal courts. As a
result the Illinois law was found to be an infringement of the
defendant’s right to due process and equal protection. 1 -‘
0
An extension of the Illinois v. Griffin rule to cases of imprison-
ment for failure to pay fines requires a balancing of the interests.
The imprisonment is of no economic benefit to the state. In fact, the
imprisonment is particularly costly to the state. At the same time
the state has an interest in impressing upon offenders the necessity
of obeying the law, and in deterring the offender or other persons
in the community from further breaches of the law. On the other
hand, these goals can be achieved by less costly means: imprison-
ment itself was originally rejected in favor of a fine; the ends
of punishment then do not demand imprisonment. They could be
met by a system of payment of fines by instalments, delayed fines,
and other procedures recently enacted into legislation in England 100
and the state of New York.10 7 The ends of justice could also be
served in appropriate cases by re-sentencing the offender to a
term of probation or suspended sentence.
In addition, the balancing process requires a recognition of the
costs to the defendant: loss of liberty on the excuse that it is
difficult to fine the poor; the shame and disgrace of being a “jail
bird”; disruption and weakening of the offender’s family structure;
and a corruption of the prisoner. As long as the state has alternative
options open to it in securing its objectives at relatively low cost,
the practical consequences of imprisonment of poor persons as
an alternative to a fine may well be regarded as arbitrary and
an invasion of equal protection and due process under law.
In United States ex rel. Privatera v. Kross,08 the constitutionality
of imprisonment as an alternative punishment in default of fine
was upheld. The district court for the Southern District of New
York rejected the equal protection argument on the ground that
modem sentencing theory demanded individualization of sentences
and that an offender had no more constitutional right than another
105 Griffin v. Illinois, 351 U.S. 12 (1956).
1o6 Supra, n. 41.
107 New York Code of Criminal Procedure, s. 470-d, as amended, N.Y. Sess.
Laws 1967, c. 681, s. 61.
108239 F. Supp. 118 (S.D.N.Y. 1965).
No. 4]
FINES
offender “no matter what his economic status, rich or poor, to
receive the same sentence for the same offence”.
Unlike the Saffore case, the facts of Privatera did not disclose a
flagrant abuse. The accused had been sentenced to thirty days
imprisonment, a $500 fine or sixty days in default. The accused
was without funds although the court had not made any inquiry
into his ability to pay. Nevertheless, in principle, since’ the im-
prisonment should have been found unconstitutional, the court’s
judgment may yet be circumvented. The equal protection argument
does not turn on a right to receive the same sentence as another,
it turns on the requirement that where the state makes distinctions
in selecting certain groups for special treatment, the selection and
the administration of the special treatment must not be arbitrary
either on its face or in its practical operation. As indicated earlier,
imprisonment of the poor as an alternative punishment in default
of payment is arbitrary in its practical consequences.
Recently, the Supreme Court of Canada breathed life into the
Canadian Bill of Rights by holding that section two of the Bill
was no mere rule of construction but a statutory declaration of
rights and freedoms that must be paramount to conflicting federal
laws. The federal Criminal Code permitting imprisonment in default
of payment of fines is in conflict with Canadian Bill of Rights
guarantees of due process, equality before the law, freedom from
arbitrary detention and cruel and unusual punishment.
In Regina v. Drybones,10 9 the Supreme Court of Canada found
a conflict between the Bill’s guarantee of equality before the law
and federal legislation which in its effect, drew a distinction between
Indians and white persons not only respecting the places where
they might be found drunk, but in the penalties attached *to the
prohibited drunken conduct. The court held that s. 94(6) of the
Indian Act in its application infringed on the accused’s right to
“equality before the law.” That term was interpreted to require
equality of treatment:
“[Section) 1(b) means at least that no individual or group of individuals
is to be treated more harshly than another under that law, and… an
individual is denied equality before the law if it is made an offence
punishable at law, on account of his race, for him to do something
which his fellow Canadians are free to do without having committed
any offence or having been made subject to any penalty.”110
109 (1970), 9 D.L.R. (3d) 473. For a theoretical discussion of the meaning of
equality see: J. C. Smith, Regina v. Drybones and Equality Before the Law,
(1971), 49 Can. Bar Rev. 163.
11o Ibid., p. 484 per Ritchie, 1.
McGILL LAW JOURNAL
[Vol. 16
No doubt the Supreme Court will have other occasions on which
to give further content to the guarantees of due process and equality
before the law. It is suggested, however, that the constitutional
protection does not prohibit the government from drawing any
distinctions between groups on the basis of color or sex, for
example, providing the distinction is rationally related to its purpose,
is not discriminatory on its face, nor discriminatory in its effect.
For example, under the Prisons and Reformatories Act,”‘ a fed-
eral Act, female offenders who are Roman Catholic and over
the age of sixteen, but not male offenders, in Nova Scotia may be
resentenced to an additional term beyond that imposed by the
trial judge. The purpose is rehabilitative and, as such, the distinction
drawn between men and women may be rational in its basis. More-
over, the women are to be sentenced to a reformatory in order
that the rehabilitative purposes may be achieved. Whether the law
is invidiously discriminatory in its application so as to deny women
equality before the law is a matter to be considered only after an
investigation of the realities of the reformatory treatment programs
and the success or otherwise of treatment programs generally.
Of relevance in this inquiry would be a consideration of alternative
ways in which the state’s purposes could be achieved without such
a gross invasion of individual liberty. In Drybones the liquor
control laws were found, in their application, to be discriminatory
against Indians; an application of the same test may cast doubt
upon the validity of section 99 of the Prisons and Reformatories Act,
no less than the legality of imprisoning indigents in default of
payment of fines.
Even as discriminatory distinctions based on race, religion or
sex are suspect under the Canadian Bill of Rights, so, too, it is
suggested, distinctions based on wealth will also be seen to be
suspect under the equality before law clause. While government
is entitled to distinguish between rich and poor for the purposes
of specific government action and may direct specific burdens to
be borne by the poor, it is suggested that unless the selection of
the poor as a specific class to bear the additional burdens is shown
to have some rational basis, then the distinction is arbitrary and
a violation of equality before the law. Similarly, if governmental
action is not rationally related to its effect, it is prohibited by
the Bill of Rights.
That government may legislate requiring imprisonment as an
alternative punishment to a fine is not on its face discriminatory
U11R.S.C. 1970, c. P-21, s. 99.
No. 4]
FINES
as between rich and poor. Each man is free to pay or not to pay.
Yet, to the extent that the purposes of punishment in a particular
case permit the substitution of imprisonment. for fines, the law
ceases to be wholly rational. Once a decision to impose a fine is
made, the decision has also been made that the purposes of punish-
ment in the particular case do not require the severe sanctions of
imprisonment. To ignore the distinction already made and routinely
to impose imprisonment as an alternative punishment is arbitrary
and unjustifiable.
Finally, in its effect and application, imprisonment as an altern-
ative punishment, as has already been noted, imposes harsh and
substantial penalties on a man who is shown to be unable to pay,
while the benefits to the state are minimal. The state objectives in
the sentencing process could be met by following less expensive
options. In this instance to treat the poor more harshly than the
rich, is without justification under law. Questions of liberty or
imprisonment ought not to be determined by the amount of cash
in a man’s pocket.
Apart from the guarantees of due process and equality before
the law, the Canadian Bill of Rights forbids “arbitrary detention”,
“imprisonment or exile” as well as “imposition of cruel and unusual
treatment or punishment.” The foregoing analysis respecting equal-
ity before the law has some application to the question of arbitrary
imprisonment. Unless the imprisonment can be shown to be rational
in its basis and free from gross inequalities in its effect, particularly
where the justification is small, it may be found to be an arbitrary
deprivation of liberty.
What constitutes “cruel or unusual punishment” remains to be
elaborated on by the Supreme Court of Canada, but in the United
States the law appears to be well settled that imprisonment as a
means of enforcing payment of fines is not cruel punishment in the
sense that it is “so excessive.., and so disproportionate.., as to
shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circum-
stances.” 112
Where, as in Canada, the legal basis for the imprisonment in
default of payment is not enforcement, but punishment, the cruel
or unusual punishment clause may have application. Robinson v.
California'” held that it was cruel and unusual punishment to
11216 Corpus Juris 1358. Cited with approval in People v. Magoni, 73 Cal.
App. 78, 80 (1925); 238 P. 112, 113 (District Court of Appeal).
113 370 U.S. 660 (1962).
McGILL LAW JOURNAL
[Vol. 16
punish a drug addict because of his addiction. More recently in
Powell v. Texas,” 4 a divided court held that it was not unconsti-
tutional to punish an alcoholic for being drunk in a public place.
Four members of the court dissented on the ground that an
alcoholic could not avoid being in a drunk condition and, therefore,
to punish him was cruel. Mr. Justice White, who voted with the
majority, stated that as the alcoholic did not have to get drunk
in a public place, it was not unconstitutional to punish him
accordingly.
Accepting Justice White’s position, the indigent offender could
argue that since he is unable to pay the fine, just as the chronic
drunk is unable to refrain from drink, he ought not to be punished.
Reason may suggest, however, that the indigent offender is not
being punished because he is poor, but he is being imprisoned
because he committed an offence. The reality of the situation,
however, is one of punishment that would not otherwise have been
imposed but for the accused’s economic condition.
Magna Carta and the Bill of Rights of 1688, both of which form
part of the Canadian constitution, forbid excessive fines.”6 In the
Saffore case the court held that the $500 fine imposed on an
offender without means to pay was excessive:
There seem to be no controlling decisions on the question of what
is an excessive fine… The phrase ‘excessive fine’ if it is to mean anything,
must apply to any fine which notably exceeds in amount that which
is reasonable, usual, proper or just. A fine of $500 for common misde-
meanor, levied on a man who has no money at all, is necessarily excessive
when it means in reality that he must be jailed for a period far longer
than the normal period for the crime, since it deprives the defendant
of all ability to earn a livelihood for 500 days and since it has the
necessary effect of keeping him in the penitentiary far longer than would
ordinarily be the case.116 ‘
What constitutes excessive therefore, depends in part upon the
offender’s ability to pay. A narrower view is that fines are not
excessive unless they “shock the moral sense of the people” or
“so disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people concerning
What is right and proper under the circumstances.” “’17 It is sub-
114 392 U.S. 514 (1968).
15 Op. cit., n. 4; 1 Will. & Mar. sess. c. 2 (1688) –
not to be required nor excessive fines imposed.. “.
116 Op. cit., 97, at p. 975.
“1 Supra, n. 112.
“That excessive baile ought
No. 4]
FINES
mitted that all fines resulting in the imprisonment of people without
means to pay are excessive and contrary to constitutional protections.
Litigation of constitutional rights, however, is costly and should
be a matter of last resort. The objects to be achieved through
constitutional guarantees, fundamental fairness, and due process,
and equality before the law can be secured in Canada under existing
legislation providing the courts use the powers already at their
disposal.
The assumption is that fines should be retained as the primary
sentence in magistrates’ courts for both rich and poor offenders.
As indicated, evidence suggests that fines have a favorable reconvic-
tion rate when compared with imprisonment or probation; in addi-
tion, particularly with respect to certain categories of offences, the
purposes of general and special deterrence may be effectively
achieved through fines with a minimum of cost and unnecessary
suffering. While inequity arises under present practices, in the
use of fines the solution lies not in abandoning fines, but in using
them so as to avoid the evils of imprisonment in default of payment.
Already under the Criminal Code provisions are available per-
mitting time for payment, payment by instalments or payment of
fines as a condition of a probation order. These provisions should
be fully utilized, with the resources of the probation service being
used to assist in the collection of fines payable by installments.
While the administrative inconvenience is not likely to be welcomed
by the magistrates, the extra burden of collecting fines could be
mitigated by assisting the courts with additional clerical staff.
The practice of using the probation service in collecting payments
under restitution orders appears to be working out satisfactorily
and should be extended to the case of fines payable by installments.
At the present time the Criminal Code does not prohibit the
imposition of imprisonment as a primary punishment in cases
fit for fines but where the offender is without means to pay.
Legislative amendments to the Code should prohibit imprisonment
in such cases thus saving the need for court challenges on consti-
tutional grounds. As indicated, the state has other options; namely,
fine payable on installments, probation orders with a condition of
money payments, or delayed payments. Such reasonable alternatives
to imprisonment are now available and equal protection and due
process demand that they be utilized.
