2011 Karen Selick
An edited version of this article first appeared in the November 18, 2011 issue of
The Lawyers Weekly under the headline "Doing Time Is Money as Well".
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Like Jail, Infringe Personal Liberty
I think the answer would have to depend on your personal “exchange rate” between the two forms of penalty. If the maximum fine were only $100, you’d probably pay it gladly rather than suffer the ignominy of going to jail—unless, like Henry David Thoreau, your goal was deliberate civil disobedience.
But if the fine were $250,000 you might well prefer to spend some time in jail, albeit reluctantly. But how much time? Again, it depends on your own unique set of preferences and motivations, including your financial circumstances. I wouldn’t willingly trade a decade of my life for that amount, but I might trade a year or two—especially if I thought that I could get a lot of backlogged writing done in jail.
The point, of course, is that everybody does have some notional exchange rate between being locked up and being deprived of money, even if the pivot point varies radically from one person to the next.
The Criminal Code has long recognized that there is a trade-off. One offence provides for a fine of up to $100 or imprisonment for 90 days. Another provides for a fine of up to $250,000 or imprisonment for 6 months. The code’s exchange rate between money and time thus varies from a paltry $1.11 per day, to a hefty $1,366 per day.
Why does any of this matter? Well, there’s a line of cases holding that a person’s liberty interest under section 7 of the Charter is engaged if he faces the possibility of jail upon conviction, but not if he faces a “mere” fine. There’s also jurisprudence holding that so-called “administrative monetary penalties” imposed by regulatory bodies do not attract the procedural protections guaranteed by Charter section 11 to people charged with an offence—for instance, the presumption of innocence.
These distinctions are illogical when you compare what really happens to people under the two forms of punishment.
If you go to jail, you generally can’t go to work. So you lose the income you would have earned had you been free. You can’t travel, and you lose many options about how to conduct your life. But you don’t lose every iota of personal freedom. They don’t stuff you into a straightjacket and stand you in the corner while your brain atrophies. Some people actually move ahead with their lives and accomplish worthwhile things while they’re in jail. For instance, Marc Emery, Canada’s “Prince of Pot”, recently obtained his grade 12 diploma while in a U.S. jail, something he never had time for on the outside.
Many famous works have been written in whole or in part while their authors were in jail: Pilgrim’s Progress by John Bunyan, short stories by O. Henry, and renowned essays by Gandhi, Oscar Wilde and Martin Luther King, Jr. As English parliamentarian and poet Richard Lovelace wrote from his cell: “Stone walls do not a prison make, nor iron bars a cage.”
On the other hand, taking someone’s money away has the same effect as taking away the time he spent earning it. It’s like retroactively putting him in jail and preventing him from working. Depending on the size of the fine, it can also deprive him of the same additional freedoms that jail deprives people of: the freedom to travel and many options about how to conduct his life.
Although Canadian courts routinely and cavalierly dismiss economic liberty as of little importance, people actually take the loss of their money very seriously. Marriages break down over money. A spate of suicides occurs during every financial crisis.
Monetary penalties can be huge these days. The Ontario Securities Commission, for example, can impose a penalty of up to $1 million—all free of Charter protections. These ruinous penalties can be far more disruptive to a person’s life than a jail sentence, and the disruption can last much longer.
If there were once any rational distinctions between what the law considered a crime and what it considered a “remedial” or “regulatory” statute, these have long since blurred into oblivion. The nine top jurists in Canada—the Supreme Court—couldn’t agree among themselves on what was criminal and what was regulatory when called upon to rule on the Assisted Human Reproduction Act in 2010.
To add to the confusion, you can no longer even distinguish Criminal Code offences by their having genuine victims. Firearms protester Bruce Montague spent 6 months in jail for not doing the paperwork for his guns. He never hurt a fly, but he is now a convicted criminal.
Our courts have made a mockery of the Charter, suctioning out the meaning from its guarantees of individual rights.
Legislatures and bureaucrats have been given carte blanche to have their way with citizens so long as they use the right terminology (“administrative monetary penalty”), and so long as they use the money-grab method rather than the locking-up method of destroying citizens’ freedom.
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January 2, 2012