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Chapter 57

The Federal Prosecution Service DESKBOOK

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Part XII
NEW POLICIES
Chapter 57

57 FINE RECOVERY

57 FINE RECOVERY

57.1 Introduction

Numerous amendments were made to the sentencing provisions of the Criminal Code in September 1996¹, many of which were designed to reduce the use of incarceration in sentencing. As the Supreme Court of Canada has observed, one of the key purposes of the amendments is that “jail should be reserved for those whose conduct deserves to put them there.”²

Among those amendments were numerous measures meant to ensure that those offenders who received fines did not wind up in jail simply because of their inability to pay. These measures included: abolition of the automatic issuance of warrants of committal for non-payment; a requirement that the sentencing judge be satisfied of the offender’s ability to pay the fine before it is imposed³; the creation of civil enforcement mechanisms⁴; and the possibility of provincially established “fine option” programs, which permit offenders to earn credits for work performed to satisfy the outstanding debt⁵.

57.2 Purpose of the policy

The non-recovery of fines has the potential to bring the administration of justice into disrepute. The imposition of fines is an important sentencing tool, and adequate measures must be implemented to ensure their collection. This policy is intended to enhance the deterrent value of fines by ensuring that offenders comply with the sentencing court’s order.

57.3 General Principles

This policy is guided by four principles:

ensuring that a coordinated, national approach is taken to fine collection, while permitting some regional variation in procedures to enhance the effectiveness of fine collection efforts;
maximizing the amounts of fines collected, while minimizing recovery costs;
ensuring that all reasonable measures are taken to collect fines; and
ensuring accountability for fine recovery efforts by establishing effective reporting and program evaluation mechanisms.

57.4 The National Fine Recovery Program

The National Fine Recovery Program has two components, a central one and regional one.

57.4.1 The Role of the National Coordinator

The National Coordinator of the National Fine Recovery Program is based at FPS Headquarters in Ottawa. Reporting to the Senior General Counsel, Strategic Operations Section, the Coordinator has five main responsibilities:

maintaining the Fine Recovery Procedures and Users Manual,⁶ which contains detailed instructions on fine recovery procedures;
working with other government departments and agencies to enhance collection efforts;
providing operational support to regional Fine Recovery Units;
preparing, in consultation with regional Fine Recovery Units, quarterly reports on the status of fine collection efforts; and
developing an evaluation framework capable of adequately describing and measuring collection efforts.

57.4.2 Role of the Regional Fine Recovery Unit

Each Region has a Fine Recovery Unit, which will be responsible for the monitoring and enforcement of fines in default. This includes:

Tracking and monitoring fines as they come into default and confirming payment with the appropriate provincial authorities;
Contacting offenders in default and gathering information on their willingness and ability to pay;
Determining, based on the information gathered, which collection actions would be most appropriate in the particular case;
Recording key information in the departmental case management system to allow for monitoring of fine payments and description of the steps taken to collect fines. This information can then be readily shared with the National Coordinator to permit a proper evaluation of the Fine Recovery Program;
Ensuring, where feasible, that Crown counsel associated with the Fine Recovery Unit represent the Crown at any court proceedings relating to fine repayment⁷. Where not feasible, the Unit should provide instructions and guidance to the counsel appearing; and,
Informing all local stakeholders of the policy and procedures, and working with them to develop joint processes that support the policy. These stakeholders include the judiciary, the defence bar, the police and regulatory enforcement agencies, provincial and territorial governments (as represented by the provincial attorneys general and the court administrators) and Crown agents.

57.5 Role of Crown counsel

The general role of Crown counsel is to minimize the number of instances where special measures need to be taken to recover unpaid fines.

57.5.1 Before Sentence is imposed

Before recommending that a fine be imposed, Crown counsel should take every reasonable measure to ensure that the fine is an appropriate disposition, which will necessarily include forming an opinion as to whether an offender is capable of paying the fine. Where possible, Crown counsel should, as part of the negotiations for resolving the file by way of a fine, arrange with the defence for the payment of the fine on the day of sentencing; if the money to pay is not immediately available, but will be in the near future, Crown counsel should seek to have the sentencing proceedings take place on that day.

When a fine is imposed, Crown counsel are responsible for ensuring that key information related to the fine is entered into the Department’s case management system, so that the fine can be monitored by the Fine Recovery Unit.

57.5.2 Post –Sentence Hearings under Section 734.3 of the Criminal Code

Section 734.3 of the Criminal Code deals with applications to change the terms of the order made by the sentencing court. The most common type of application is for an extension of time to pay the fine. Where feasible, these hearings should be conducted by the Crown counsel attached to the Fine Recovery Unit. If this is not feasible, the Crown counsel attending should seek guidance from the Fine Recovery Unit.

In addition to the guiding principles referred to in s. 57.3 above, the Crown’s position should be informed by the following considerations:

representations made to Crown counsel by the offender or the offender’s counsel prior to sentencing
representations made to the court at the time of sentencing
changes to the offender’s economic circumstances since sentencing
the offender’s history of cooperation with the Fine Recovery Unit

57.5.3 Post-Sentence hearings under section 734.7 of the Criminal Code

As mentioned above, the 1996 amendments abolished the automatic issuance of warrants of committal for offenders who had defaulted on payment of a fine. A hearing under s. 734.7 of the Criminal Code is now necessary to determine whether a warrant of committal should be issued. As with hearings under s.734.3, Crown counsel in the Unit should attend, where feasible. Where counsel from the Unit cannot attend, the Unit should ensure that the attending counsel has appropriate guidance.

The Crown’s position should be informed by considerations similar to those outlined in s. 57.5.2 above. Incarceration is intended for those having the means to pay but who choose not to. For others, Crown counsel should seek a solution that ensures the effectiveness of the fine as a sanction

57.6 Options Available to Crown Counsel to Recover the Fine

The Regional Fine Recovery Units have several enforcement options at their disposal. The decision as to which of the options to use should be made on a case-by-case basis, in accordance with the principle of collecting as much of the fine as possible at the lowest possible cost. The following options should be explored after a letter has been sent to the offender or the offender’s counsel requesting a statement concerning the offender’s financial situation, and telephone contact.

57.6.1 Negotiation

Conferences may be arranged between the paralegals (or Crown counsel) and the offender and/or his lawyer, to negotiate commitments for payment on a suitable schedule. This is appropriate and recommended in cases where the offender is cooperative, forthcoming with information and willing and able to pay.

57.6.2 Registering a civil judgment under s. 734.6 of the Criminal Code and seizing assets or garnishing wages

This option would be appropriate where there is evidence that the offender has assets or income but is uncooperative or unwilling to pay.

57.6.3 Set-off the debt against payments owing to the debtor from Her Majesty

This option is appropriate: a) where the offender is unable to be located; or b) the offender is uncooperative and other collection options have proven ineffective.

57.6.3 Suspension or denial of federal licences, permits or other similar instruments under s.734.5(b) of the Criminal Code

This would be appropriate for an offender, who has or requires such a licence, permit or other similar instrument and who, despite having the means to pay the fine or make scheduled payments towards the fine, is uncooperative or unwilling to pay.

57.6.5 Requesting a warrant of committal in default of payment under s.734.7(1)(b).

This policy emphasizes recovering debt over incarcerating debtors, a principle consistent with the Supreme Court of Canada's decision in R. v. Wu⁸. While offenders can be compelled to attend court for a hearing under this provision, Crown counsel will only seek a warrant of committal as a last resort. A warrant of committal will only be sought where an offender has not paid the fine within the due date and:

attempts to reach an agreement with the offender have failed;
civil enforcement measures would be ineffective or otherwise inappropriate;
precluding the offender from obtaining federal licences without repaying the outstanding fine would be inappropriate; and
despite having the means to pay the fine or make scheduled payments towards the fine, refuses to pay.

The Crown will not seek warrants of committal against offenders who are truly impecunious, but instead will accept repayment on generous terms and revisit these files for changes in economic circumstances.

1 S.C.1995, c.22

2 R. v. Wu,[2003] 3 S.C.R. 530; 2003 SCC 73, at para.2.

3 Criminal Code , s.734(2)

4 Criminal Code , s.734.6

5 Criminal Code, s.736 . Not all provinces have established such programs.

6 The Fine Recovery Procedures and User Manual can be obtained by contacting the Coordinator, National Fine Recovery Program.

7 Such hearings would include those under s. 734.3 of the Criminal Code , which governs extensions of time for payment, and s. 734.7, which governs hearings for the issuance of a warrant of committal for non-payment.

8 Note 2, above.