6.6 Charitable Donations

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

November 28, 2017

Table of Contents

1. Purpose

The purpose of this guideline is to provide direction to Crown counsel regarding the making of charitable donations to registered charities or non-registered benevolent organizations (“charitable donations”) by offenders as an aspect of diversion or sentence.

2. Policy Statement

Donations by individual offenders to registered charities or non-registered benevolent organizations are unacceptable, as an aspect of an alternative measure for an adult or an extrajudicial sanctionFootnote 1 for a young person, in exchange for a withdrawal of charges or as an aspect of sentence.

In exceptional circumstances, donations by certain kinds of organizations to registered charities or non-registered benevolent organizations are acceptable as an aspect of sentence.

Charitable donations by offenders are not specifically mentioned in the Criminal Code, the Controlled Drugs and Substances Act or the Youth Criminal Justice Act (YCJA). Except to the extent provided in this policy, Crown counsel must not agree to an offender making a charitable donation as part of the resolution of a case.

Other federal statutes may permit the making of payments as a component of alternative measures or sentence, including to organizations that may have charitable status designations. This is discussed in the sections below on Prosecutions of Organizations and Offences Under Regulatory Statutes – Principles Governing Charitable Contributions.

3. Background

A charitable donation may be a component of a diversion agreementFootnote 2, or as a condition of a probation orderFootnote 3 or of a conditional sentence orderFootnote 4. The common law regarding charitable donations by offenders is unsettled, and varies across Canada.Footnote 5 The Supreme Court of Canada has not decided the issue.Footnote 6

4. Suggested Approach

In jurisdictions where binding legal authority permits such donations in certain contexts, Crown counsel should nevertheless indicate to the court that Crown counsel opposes charitable donations by individual offenders on policy grounds.

5. Prosecutions of Individuals

Charitable donations by individual offenders may raise policy concerns, which have been identified in the Canadian jurisprudence and are summarized below.

Misperceptions when criminal justice system participants choose charities

As the Manitoba Court of Appeal said in R v Choi, ordering charitable donations has the potential for abuse, or at least, for the appearance of abuse, when the charity is selected by a criminal justice system participant, such as defence counsel, the Crown or the judge. “[T]he question may be asked: [W]hy did the judge pick charity X and not charity Y? Did the judge or counsel have some connection to the charity in question?”Footnote 7

It is not the role of criminal justice system participants to decide how public monies collected from offenders should be re-allocated. Parliament has created other statutory mechanisms for that purpose as discussed below.

A charitable donation may create a misperception about outcomes for impecunious offenders

Permitting the offender to make a charitable donation as a condition of diversion in lieu of proceeding with a prosecution creates a risk, or at least may foster the perception, that an offender who can afford to make a charitable donation can receive a more lenient outcome than an impecunious offender, and thus “buy” his or her way out of a prosecution.Footnote 8

In addition, since an offender must consent to an alternative measure,Footnote 9 a charitable donation would be considered a voluntary payment and thus be income tax deductible.Footnote 10 The offender, then, would receive a benefit.

A charitable donation is not an acceptable condition of a discharge

Crown counsel should not agree to a donation as a condition attached to a conditional discharge for reasons similar to those discussed above regarding alternative measures. There is a risk that an offender who can afford to make a charitable donation could receive a conditional discharge while a similarly situated impecunious offender would receive a more onerous sentence, such as the imposition of community service.Footnote 11

In addition, under the Code, it is illegal for a fine to be imposed in relation to a conditional discharge because a discharge is not a conviction. (A fine can be imposed only following a conviction.)Footnote 12 Thus, it is inappropriate and improper for a charitable donation to be ordered instead of a fine in these circumstances. This can be seen as circumventing the intent of Parliament by imposing a fine indirectly.Footnote 13

A charitable donation is not subject to the fine regime

The objectives of a charitable donation can be more effectively satisfied through the imposition of a fine, an order of compensation, restitution, or community service.

The Code and other federal and provincial legislation provide for clear processes whereby court-ordered monies are to be collected and redistributed, a transparent process that ensures public accountability and oversight.Footnote 14

A fine, for example, is a recognized sanction that is part of a statutory framework in the Code. The fine is paid to government. This permits the government to redistribute the monies based on its priorities.

The Code also provides a method of enforcing payment of fines and gives offenders time to pay, which can level the playing field among offenders of various means. There is no similar framework or oversight in the case of charitable donations by offenders.Footnote 15

6. Prosecutions of Organizations

The principles governing individuals apply equally to for-profit organizations. However, for governments and not-for-profit organizations, a donation to a charitable organization may have a greater effect than a fine, in enhancing public confidence in the administration of justice by making apparent the direct and immediate link between the penalty and the contribution, by remedying the harm or reducing the likelihood of a similar offence by the offender or other offenders in the future.Footnote 16

In exceptional circumstances, Crown counsel may propose a payment of money to a charitable organization as a condition of a probation order or an alternative measure provided that:

  1. It is a prosecution of a government organization (sometimes known as an R v R prosecution) or a not-for-profit organization;
  2. The statute under which the organization was charged or constituted has no restrictions on such a payment;
  3. The appellate caselaw in the jurisdiction does not preclude such an option;Footnote 17
  4. The charitable recipient has been in existence for some time and has a track record as a responsible charitable endeavor;
  5. The objectives of the charitable recipient are consistent with the objectives of the statute under which the charges were laid, e.g., occupational health and safety in the case of workplace safety offences;
  6. There is no connection, personally or through family, between the Crown or any member of the investigating team, and the proposed recipient other than that of donor;
  7. Prior approval is sought and obtained, in writing, from the DDPP or the DPP.

In all cases, this option should only be used when it is consistent with the principles of sentencing, the regulatory or legislative scheme at issue, and the interests of justice.

7. Offences Under Regulatory Statutes – Principles Governing Charitable Donations

Some statutes, particularly those aimed at pollution control or wildlife protection, contain provisions allowing for the payment of money to an organization, as either an aspect of an alternative measure or as part of a sentencing order.Footnote 18 In prosecutions under those statutes, it is appropriate for Crown counsel to join in a recommendation that a disposition by way of alternative measure include a payment to a charitable organization, where that organization’s purpose is in line with the goals of the particular statute or regulation. Similarly, it is appropriate for the Crown to support a recommendation for the payment of money to an organization as a term of an order made additional to the imposition of a fine or imprisonment, subject to the following conditions:

8. Conclusion

Crown counsel must engage in resolution discussions and conduct prosecutions in accordance with this policy.

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