Purchasing Justice?

Last month, the Manitoba Court of Appeal commented on the practice in some Manitoba courts of ordering charitable donations be made as a part of sentencing in criminal or other quasi-criminal proceedings.

The Court, in R. v. Choi (J.W.), 2013 MBCA 75 (CanLII) was considering an appeal of sentence by the Crown from a conviction under s. 124(1)(c) of the Immigration and Refugee Protection Act relating to the defendant’s illegal employment of six foreign nationals. The sentence imposed by the lower Court was an 18-month conditional discharge including supervised probation and a condition that Choi:

Make a charitable contribution in the sum of $6,000 to the International Centre and $6,000 to Welcome Place within the first nine months of this order. Payment is to be made through the office of the Clerk of the Court, with no tax receipt to be provided or accepted.

The Court granted the appeal, setting aside the conditional discharge and imposing a fine instead. In doing so, the Court commented at some length, and entirely in obiter dicta on this practice:

[76] Without intervention by Parliament and the passage of legislation and/or regulation, the ordering of charitable donations by a court gives rise to many concerns which, in my view, have an adverse impact on the administration of justice. Some of those concerns are as follows:

1. The ordering of a charitable donation could create the impression of unequal justice. In this case, the judge commented in her decision (at para. 34):

…. I would note that an order of this nature is one which could be considered only where the accused has the financial ability to comply, and that a specified timeframe for compliance should be included.

While it is true that an accused’s ability to pay is always a concern in the imposition of a fine, that concern is usually addressed by giving the accused time to pay, invoking the use of the fine option program or other alternatives available under the criminal system.

The point is that a fine is paid to the court and there is a civil process which may be followed to effect collection, if necessary.

On the other hand, a charitable donation is made to a charity. There is no enforcement ability other than the commencement of criminal proceedings for breach of a condition of a probation order, and this in respect of a regulatory offence and not a Criminal Code offence.

In this case, the sentencing judge, after presumably satisfying herself that the accused had the ability to pay the charitable donations, ordered a conditional discharge and charitable donations rather than a conviction and payment of a fine. The former does not result in a conviction against the accused, nor will he have any record for conviction. The latter gives rise to both. In my view, this results in the unseemly appearance that a person who has the means to make a charitable donation may be able to obtain a discharge and no conviction or record therefor, whereas someone without such means is not able to do so and is therefore subject to a conviction and record.

2. The ordering of a charitable donation gives rise to the potential for abuse or the appearance of abuse in the criminal justice system. Where a judge orders payment of a donation to a particular charity, whether in compliance with the submission of counsel or, more significantly, of his/her own choosing the question may be asked: why did the judge pick charity X and not charity Y? Did the judge or counsel have some connection to the charity in question?

3. Charitable donations deprive the government of the revenues arising from payment of the penalty. A fine, on the other hand, is paid to the government and is taken into general revenue. Such payment goes to offset the cost of investigation, prosecution and those other costs associated with the proceedings flowing from a charge. With a charitable donation, the irony is that not only do the monies go to a charity, but, if payment is not made and enforcement is to be undertaken, the costs of the enforcement again fall to be paid out of government coffers by way of criminal proceedings for breach of probation.

[77] As it is unnecessary for the court to decide that in no case can a charitable donation ever be ordered, this decision should be restricted to this case, that is, the granting of a conditional discharge. But, in my view, the concerns expressed in obiter, which are only some of many, should be considered and the matter addressed by Parliament. If charitable donations are to be a sentencing option for judges, a legislative amendment should be considered and enacted to create an appropriate regime and thereby avoid the negative impact upon the administration of justice which may arise when judges make such orders on an ad hoc basis.

This issue also recently arose in the context of the firing of a Manitoba Crown Attorney, as reported here and here. The comments of the Court with respect to whether counsel or the judge had any potential connection to the charity suggest that the Court may have been addressing that circumstance as well.

As was noted in the August 28, 2013 Winnipeg Free Press editorial, Stop Payments:

There are good reasons why the Manitoba Court of Appeal again has condemned the Crown practice of allowing charitable donations to be part of the negotiation in plea bargains or decisions to stay charges. An accused’s ability to give money to a charity should be excluded, as it creates the appearance that some people can buy leniency.

Particularly, at a time when the gaps in access to justice continue to grow, when there are no meaningful increases in funding for Legal Aid, and as litigants and accused increasingly represent themselves in court, it is essential that protections are in place to ensure that every citizen has access to equal justice regardless of income level or ability to pay.