R. v. Choi (J.W.), 2013 MBCA 75

Citation: R. v. Choi (J.W.), 2013 MBCA 75 Date: 20130822 Docket: AR 12-30-07785 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) R. L. Rankin and ) V. P. Cornick Appellant ) for the Appellant ) ) K. S.

Zaifman - and - ) for the Respondent ) ) Appeal heard: JUNG WON CHOI ) May 8, 2013 ) (Accused) Respondent ) Judgment delivered: ) August 22, 2013 MacINNES J.A. [ 1 ] The Crown seeks leave to appeal and, if granted, appeals the sentence imposed upon the accused. Background [ 2 ] The accused pled guilty to one count under s. 124(1) (

c) of the Immigration and Refugee Protection Act (IRPA). The count related to his illegal employment of six foreign nationals between June 22, 2008 and May 26, 2009. [ 3 ] Section 124(1) (

c) of the IRPA provides: Contravention of Act 124.

(1) Every person commits an offence who ….

(

c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed. [ 4 ] The Crown proceeded by indictment against the accused.

Section 125 (

a) of the IRPA provides: Penalties 125. A person who commits an offence under subsection 124(1) is liable (

a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; …. [ 5 ] As can be seen, there is no minimum penalty prescribed for the offence, and the maximum term of imprisonment, if ordered, is two years. [ 6 ] The sentencing judge sentenced the accused to a conditional discharge for a period of 18 months, which included supervised probation for that period upon certain conditions, one of which was that the accused (at para. 35): …. (

f) 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; [ 7 ] It is that sentence which the Crown seeks to appeal. [ 8 ] The matter came on for hearing on January 16, 2013, before a division of three judges of this court.

As will be seen from these reasons, an issue for consideration on the intended appeal is whether the sentencing judge could order, as a condition of the probation order, that the accused make a donation to two charities. [ 9 ] In R. v. Rivais , (5 January 1981), Winnipeg (Man. C.A.), this court, in very brief reasons, set aside the decision of a sentencing judge who had ordered that the accused be discharged upon conditions prescribed in a probation order, one of which was the making of a charitable donation of $2,500.

The court substituted a conviction in lieu of the discharge and imposed a fine of $2,500 in lieu of the charitable donation. In Rivais , Monnin J.A., as he then was, wrote, at (p. 2): In our view, the penalty imposed was one that should not receive our sanction. Indeed, an order by the Court that an accused make a donation to some charitable organization is not an appropriate way of dealing with an offender.

The less we hear of this practice, the better. [ 10 ] As it appeared that this court was going to be asked to consider and possibly overrule Rivais , the appeal was adjourned to permit the court to sit in a division of five judges, a practice normally followed when the court is asked to reconsider and possibly overrule an earlier decision. [ 11 ] The case was thus argued before a division of five judges on May 8, 2013. [ 12 ] The issues raised by the Crown on this appeal are whether the sentencing judge committed an error in principle in the sentence imposed upon the accused or whether the sentence imposed was unfit.

The Standard of Review [ 13 ] The standard of review on a sentence appeal is well known. An appellate court is required to show great deference

when reviewing a sentencing decision. Absent an error in principle or a sentence that is demonstrably unfit, an appellate court must notintervene. See R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R.500; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163. Facts [14] At the material time, the accused was the president, director and principal shareholder of two corporations whichoperated two sushi restaurants in Winnipeg.

The accused, by his guilty plea, admitted that he employed six foreign nationals to work atthe restaurants, without authorization, for certain periods between June 22, 2008 and May 26, 2009. [15] The IRPA prohibits a foreign national from working in Canada without authorization. [16] The Immigration and Refugee Protection Regulations (IRPR) create different regulatory regimes to permit foreignnationals to work in Canada.

This case involves the regulatory regime in the IRPR applicable to what is known as the “worker class,”that is, foreign nationals who may work in Canada for a set period of time specified in their work permit before returning to their homecountry. The worker class does not lead to any form of permanent residency in Canada. [17] Through the Temporary Foreign Worker Program (TFWP), employers are allowed to recruit and employ foreignworkers to meet temporary labour shortages.

Two documents are critical to the TFWP, a “labour market opinion” (LMO), and a “workpermit.” [18] To legally employ a foreign national under the TFWP, the employer must apply to the Department of Human Resourcesand Skills Development Canada (HRSDC) for an LMO. Service Canada performs the LMO function for the HRSDC. It assesses theimpact on the Canadian labour market of the employer’s hiring of a foreign national based on certain criteria set out in the IRPR.

AnLMO focusses on how an offer of employment to a foreign national would likely affect Canadian jobs. [19] If a positive LMO is granted, the foreign national can proceed to apply for a work permit. However, a positive LMOdoes not bind an immigration officer to issue a work permit. A foreign worker must also satisfy other criteria in order to obtain a workpermit under the TFWP. [20] In March 2007, a Korean national, attempting to enter Canada in Vancouver, told the immigration officer he wascoming to visit his uncle, the accused, to help out in the accused’s sushi restaurant.

He confirmed that in 2006 he had worked in therestaurant and was compensated by the accused with housing, and a lump-sum payment on his return to South Korea. [21] As the nephew did not have a work permit, the authorities contacted the accused’s wife in Winnipeg. She confirmedthat, in exchange for working in the accused’s restaurant, the nephew would receive accommodations, meals and “pocket money.” Asthe nephew intended to work for his uncle on his visit without having a work permit, he was refused entry into Canada. [22] In March 2009, a Korean national attempted entry in Vancouver.

Authorities discovered, upon inquiry, that theindividual intended to work at the accused’s restaurant. He did not have a work permit. Thus, he would be illegally working while inCanada and was refused entry. [23] Based upon the foregoing and other information received, an investigation into the accused’s illegal employment offoreign nationals was commenced. The investigation led to the indictment to which the accused pled guilty in this case. [24] Each of the six foreign nationals named in the indictment was employed by the accused, albeit without a work permit.

Two of the six never obtained work permits and, after a period of several months, left Canada. The other four did obtain work permitsafter they had been working for a period of time. [25] The accused caused two sets of books to be kept in which he distinguished, by way of wage, those with or without awork permit. A lower wage was paid to a worker without a work permit than to a worker who had a permit. In fact, the same individualreceived a lower wage when working for the accused without a work permit than after obtaining one, although in both cases he wasdoing the same work.

One of the six, who did not have a work permit, never received any payment directly. Instead, his remunerationwas paid to his mother, rather than to him directly, and, of course, at the lower rate. [26] When working without a work permit, that worker had no access to worker’s compensation benefits, to employmentinsurance benefits or to health care. As well, the accused did not remit income tax or other deductions to the government in respect ofthat employee. [27] At the time of sentence, the accused was 57 years of age and a permanent resident of Canada.

He had enjoyed successin different businesses and had been in the sushi restaurant business in Canada since 2005. He was married with three adult children andwas an active and contributing member of his community. He had no criminal record.

Submission of Crown [28] The Crown asserts that the sentencing judge committed an error in principle by imposing, as part of a conditionaldischarge sentence, a punitive condition in the probation order made respecting the accused. [29] It argues that the condition, which ordered that the accused make a charitable donation of $6,000 to each of two namedcharities, was an optional condition imposed, in error, under s. 732.1(3)(

h) of the Criminal Code (the Code). It says that the only legaljustification for the use of an optional condition in a probation order pursuant to s. 732.1(3)(

h) of the Code is that it would protect societyand facilitate the successful reintegration of the offender into the community after his crime. The Crown asserts that the judge was silentin her reasons for sentence as to how such charitable donations would or could accomplish those purposes in the circumstances of thiscase. This error in principle, argues the Crown, makes the sentence unfit.

[ 30 ] In addition, the Crown argues that Rivais was binding on the sentencing judge, and that she was obligated to follow that decision, which she failed to do. [ 31 ] Further, the Crown submits that the sentence imposed, namely, a conditional discharge with probation, is unfit given the circumstances of this offence.

The Crown asserts that the sentencing judge erred by minimizing the importance of general deterrence and denunciation in respect of the offence. [ 32 ] It argues that Parliament’s objectives in the IRPA include lawfully facilitating the entry into Canada of temporary workers and protecting public health and safety. It is a regulatory regime which attempts to balance the need of employers for workers to fill positions which cannot be filled by Canadian workers and thereby ameliorate temporary labour shortages in the economy, without adversely impacting the employment options of Canadians.

Part of the balancing act is also to protect foreign workers from unscrupulous business people and to protect the competitive balance between Canadian employers. The latter is an important consideration because, if there is a shortage, for example, of sushi chefs as was the case here, one employer should not be allowed to imperil the competitive playing field for employers looking for workers with similar skills.

Thus, any such employer must be required to go through the same process as every other and should not be permitted to obtain a competitive advantage by illegally employing someone when other law-abiding employers may not do so. [ 33 ] The Crown asserts that the sentencing judge considered only one of these factors as important in considering the need for general deterrence in the sentence imposed, namely, protection of foreign workers.

Moreover, it says the judge ignored the accused’s counsel’s concession that “there has to be some element of deterrence in terms of a monetary punishment because I think it’s not unreasonable for the court … to say at some point in time we have to penalize this kind of conduct.” [ 34 ] The Crown argues that the prosecution of, and sentencing for, regulatory offences is targeted primarily to prevent future harm.

It says that the TFWP is a national program that is important to address temporary labour shortages in the economy and that, in a case such as this, general deterrence is essential in sending a message to the many employers of foreign workers to follow the rules of the TFWP and not to take shortcuts for reasons of profit or otherwise. [ 35 ] The Crown also asserts that general deterrence, in a sentence for breach of a regulatory offence such as in this case, requires that the penalty imposed, particularly if it’s a monetary penalty, be of a sufficient amount as will not appear to others as a mere licence fee for illegality. [ 36 ] In addition, the Crown argues that the sentence here must denounce the accused’s conduct, conduct which, it asserts, was the willful ignoring by the accused of his legal obligations, while being well aware of the rules. [ 37 ] Accordingly, the Crown asserts that a fit sentence in this case would have been a conviction and fine, not a conditional discharge and probation.

It argues that the illegal employment of foreign nationals here was willful and occurred over a period of time.

The illegality was a business practice of the corporation, as evidenced by their books and records, and the Crown submits that general deterrence and denunciation require conviction and the imposition of a fine in the sum of $20,000. [ 38 ] Such a penalty, says the Crown, would appropriately take into account the various aggravating and mitigating factors and the relevant principles of sentencing, and be ultimately proportionate to the gravity of the offence and the degree of responsibility of the accused. [ 39 ] The Crown therefore requests that leave to appeal be granted, that the appeal be allowed and that the accused’s sentence be varied to impose a conviction and a fine of $20,000, payable within such period of time as would be appropriate in the circumstances.

Submission of Accused [ 40 ] The accused argues that the sentence imposed is a fit sentence. He submits that it was open to the sentencing judge pursuant to s. 730(1) of the Code to direct the imposition of a conditional discharge in the circumstances of this case and to make a probation order and impose conditions during the period of probation. [ 41 ] He refers to s. 732.1(3) (

h) of the Code , which provides the sentencing judge with authority to impose such reasonable conditions of probation as the court considers desirable, as long as the probation order addresses the imperatives of the protection of society and the rehabilitation of the accused. In addition, he points to the comment of Steel J.A. in R. v.

Wisniewski (R.) , 2002 MBCA 93 , 166 Man.R. (2d) 73 , where she wrote (at para. 28): Judicial creativity in sentencing ought to be encouraged as long as it complies with the sentencing menu of options available in the Criminal Code . …. [ 42 ] The accused argues that he was not the mastermind of a scheme to import and hire foreign workers. He argues that some workers arrived in Canada with work permits issued by the Canadian Embassy in Korea, while others entered as visitors and subsequently were issued work permits in Canada.

He says he was not involved in the exploitation of workers. [ 43 ] By his guilty plea he acknowledged his wrongdoing and, in addition to the probation order imposing the condition pertaining to the charitable donations, he was obligated to complete 50 hours of community service work, which he has done. [ 44 ] The accused argues that the sentence imposed was appropriate in the circumstances and was not contrary to the public

interest. [ 45 ] He asserts that the sentencing judge considered the protection of foreign workers and the Canadian labour market as important for general deterrence. Furthermore, he says his actions did not affect the Canadian labour market as there was a shortage of ethnic cooks in Winnipeg at the material time. [ 46 ] The accused argues that the sentencing judge did not err in considering him eligible for a conditional discharge. He entered a guilty plea, had no criminal record and was a well-respected and contributing member of his community.

He argues that it was open for the sentencing judge to conclude that a conditional discharge was appropriate under the circumstances and that she did consider the factor of general deterrence in considering the sentence to be imposed. [ 47 ] Alternatively, he argues that, if the court were inclined to allow the Crown’s appeal and impose a conviction and fine, a fine of $5,000 would be an appropriate amount.

Analysis and Decision [ 48 ] There is no dispute that a conditional discharge was a disposition open for consideration by the sentencing judge in this case, as the offence to which the accused pled guilty had no minimum penalty prescribed and the maximum incarceratory penalty which could be imposed was two years’ imprisonment. [ 49 ] It is clear, as well, that Steel J.A. in Wisniewski wrote that “[j]udicial creativity in sentencing ought to be encouraged” (at para. 28).

But she included in that statement a critical proviso, namely, “as long as it complies with the sentencing menu of options available in the [ Code ]” ( ibid .). [ 50 ] In my opinion, the imposition of a condition in a probation order which forms part of a conditional discharge sentence requiring that an accused make a donation of $6,000 to each of two named charities is not a sentencing option available under the Code . [ 51 ]

Section 732.1 of the Code deals with conditions of a probation order.

Section 732.1(2) provides for the mandatory conditions which a court shall prescribe in a probation order.

Section 732.1(3) provides for the optional conditions which a court may prescribe in a probation order.

Section 732.1(3) (

h) provides as follows: 732.1(3) Optional conditions of probation order The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: …. (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. [ 52 ] It is that provision upon which the sentencing judge relied in prescribing the condition for payment of the charitable donations in question.

But it is not apparent in the circumstances of this case, nor did the sentencing judge give any explanation or appear to give any consideration, as to how such a condition could or would protect society or facilitate the accused’s successful reintegration into the community. [ 53 ] Moreover, the jurisprudence makes clear that the conditions of a probation order may not be punitive. In R. v. Kirton (S.E.L.) , 2007 MBCA 38 , 214 Man.R. (2d) 59 , Scott C.J.M. wrote (at para. 11): It is now accepted that the purpose of probation is to rehabilitate the offender.

Probation conditions may not be imposed as a form of punishment. …. In Shoker [2006 SCC 44 , [2006] 2 S.C.R. 399 ], Charron, J., writing for the majority, considered the scope of the “residual power” under s. 732.1(3) (h). She noted that (at para. 13): “... before a condition can be imposed, it must be ‘reasonable’ in the circumstances and must be ordered for the purpose of protecting society and facilitating the particular offender’s successful reintegration into the community. ....” [ 54 ] A condition requiring an offender to pay $12,000 is clearly a punitive condition.

In my opinion, to so order amounts to an error in principle and results in the imposition of an unfit sentence. [ 55 ] Thus, no deference is owed the decision. I would therefore grant leave to appeal, set aside the discharge including the probation order and consider afresh the matter of sentence.

[ 56 ] As I have stated, the sentencing judge chose to grant the accused a conditional discharge. Section 730(1) of the Code provides: 730.

(1) Conditional and absolute discharge Where an accused, other than an organization, pleads guilty to … an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 57 ] Section 731(2) of the Code provides:

(2) Idem A court may also make a probation order where it discharges an accused under subsection 730(1). [ 58 ] The question for determination is whether a conditional discharge was a fit sentence in the circumstances of this case.

Aside altogether from the imposition of a condition in the probation order that the accused make charitable donations, with which I have already dealt, it is my opinion that the granting of a conditional discharge for this accused in the circumstances of this case was an unfit sentence. [ 59 ] As I have already stated, the IRPA provides a national regulatory regime respecting immigration and, for the purposes of this case in particular, the employment of foreign nationals.

Its purpose is to protect immigrants who come to Canada to work temporarily, and who very often are vulnerable and unsophisticated relative to the Canadian culture and labour marketplace. The regime also attempts to accommodate Canadian employers in need of workers who cannot be found in the Canadian labour market, while at the same time protecting jobs for Canadians willing and qualified to work. As well, it attempts to preserve a competitive balance in the marketplace amongst employers.

In my view, the sentencing judge erred in failing to consider each of these purposes and the balance required to accommodate them within the overall regime. [ 60 ] The sentencing judge did not place sufficient emphasis upon what I consider to be the need for denunciation of the accused and his conduct in the circumstances of this offence, or the need for general deterrence by sending a clear and appropriate message to other employers as to the consequences of a willful violation of the IRPA in illegally employing foreign workers. [ 61 ] From the perspective of denunciation, the facts make clear that this breach of the IRPA was not the result of carelessness, mistake or lack of due diligence by the accused in his conduct.

Rather, it was willful conduct in knowing violation of the rules. Not only had he done this in the past, but, in respect of the six foreign nationals in question, his financial records disclosed that he distinguished between the wage he paid workers without a work permit as compared with that which he paid them, including the same workers doing the same work, after they obtained their work permit. [ 62 ] He, thus, had workers in his employ who had no access to worker’s compensation, employment insurance benefits or health care and for whom he did not make remissions to the government.

Moreover, in employing people without a work permit, paying them less and depriving them of access to benefits, and in avoiding the need to contribute to the government benefits programs, he secured for himself a marketplace advantage over other similar employers acting legally. In my view, the accused’s conduct should be denounced, and a conditional discharge does not amount to adequate denunciation. [ 63 ] Moreover, general deterrence is required and is not adequately addressed by a conditional discharge.

That is not to say that general deterrence is the primary sentencing factor in this particular case, but it is a factor that, in my view, requires more than the most minimal penalty available. General deterrence here will serve the purpose of letting other employers know that their willful violation of this national regulatory regime will result in a conviction and a penalty which will be seen to be meaningful and not a token. [ 64 ] The Crown sought a fine of $20,000. The accused sought a fine of $5,000.

The judge, though she did not impose a fine, ordered that charitable donations totalling $12,000 be made. [ 65 ] In all of the circumstances here, I am satisfied that a fine of $15,000 is a fit and proper penalty well within the range for offences of this kind given the circumstance of the offence and the offender, particularly when one considers that the accused, pursuant to the probation order previously made against him, has already completed the 50 hours of community service work ordered thereunder. [ 66 ] Accordingly, I would set aside the conditional discharge and probation order and impose a conviction for the offence.

In addition, I would impose a fine in the sum of $15,000 to be paid within 60 days. If a longer period than 60 days is required to pay the fine, the matter may be spoken to. Rivais and Charitable Donations

[67] As I have concluded, in this case, that the imposition of the charitable donation condition in the probation order whichformed a part of the conditional discharge sentence was punitive in nature, and thus was not a sentencing option under the Code, it isunnecessary to reconsider Rivais or to consider the issue whether certain charitable donations could be viewed as non-punitive, orassisting in the protection of society or facilitating an accused’s successful reintegration into the community, and thus be a sentencingoption for a judge.

Nevertheless, I would propose to make some comment in respect of both. [68] Rivais is a decision of this court. As I have previously stated (see para. 9), Rivais reversed a sentencing decision whichhad granted a conditional discharge with a probation order, the principal condition of which was that the accused pay the sum of $2,500by way of charitable donation.

Thus, it is on all fours with the present case. [69] In her decision in the present case, the sentencing judge wrote (at paras. 33-34): This issue must be approached with caution, with due deference shown to the decision of the Manitoba Court of Appeal in Rivais, supra. The fact that the decision is somewhat dated does not necessarily mean that it should not be followed. However, sentencing legislationand precedents have changed over the years, reflecting new areas which require emphasis and, in some case denunciation.

Courts havebeen urged to sentence creatively and in a manner which best responds to the circumstances of the offence and of the offender. TheCourt of Appeal in Wisniewski, supra, tacitly recognized those changes. The time has come to include in those changes the ability of the Court, in the appropriate cases, to order an offender to make a charitabledonation as a probationary condition. ….

I do not agree with the sentencing judge’s comments, as above. [70] As I have already stated, Steel J.A. in Wisniewski wrote that judicial creativity ought to be encouraged “as long as itcomplies with the sentencing menu of options available in the Criminal Code” (at para. 28). [71] Moreover, Steel J.A. went on to acknowledge that (at para. 29): However, there appears to be no consensus across Canada as to whether the imposition of a charitable donation fosters principles ofrestorative justice and rehabilitation better than the normal fine payable to the state. [72] Steel J.A. noted that, in some jurisdictions, such as Quebec and Ontario, charitable donations have been ordered.

See R.v. Prokos (1998), (QC CA), 127 C.C.C. (3d) 190 (Que. C.A.); R. v. M.A.F.A. Inc., [2000] O.J. No. 1773 (QL)(Ct.J.), and R. v. McKeigan, [2000] O.J. No. 1598 (QL) (Ct.J.). On the other hand, in British Columbia and the Northwest Territories,they have been disapproved. See R. v. DeKleric, (BC CA), [1969] 2 C.C.C. 367 (B.C.C.A.); and R. v. McMeekin(N.W.T.C.A.), [1991] N.W.T.J. No. 11 (QL); while in Alberta the decisions are divided. See R. v. Russell, [1982] A.J. No. 421 (QL)(C.A.); and R. v.

Schell (J.R.), 2002 ABQB 439, 313 A.R. 125. [73] Ultimately, Steel J.A. referred to Rivais as the only reference to the issue in Manitoba and concluded (at para. 32): …. In spite of the brevity of the reasons, that case appears to be binding on our court. …. [74] As I have stated, this case is identical to that of Rivais.

Until Rivais is reversed by this court, or by the Supreme Courtof Canada, it is binding upon the lower courts of this province. [75] As regards the question whether the ordering of charitable donations should be a sentencing option for judges, it is myopinion that that question is best left for Parliament. I note, for example, that there is other federal legislation pursuant to whichregulatory offences are created and a provision is made for the direction of monetary payment other than by way of fine to thegovernment.

For example, the Migratory Birds Convention Act, 1994, at s. 16 and the Fisheries Act, at s. 79 through s. 79.4. [76] Without intervention by Parliament and the passage of legislation and/or regulation, the ordering of charitable donationsby a court gives rise to many concerns which, in my view, have an adverse impact on the administration of justice. Some of thoseconcerns are as follows: 1. The ordering of a charitable donation could create the impression of unequal justice. In this case, the judge commented inher 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. J.A. I agree: C.J.M. I agree: J.A. I agree: J.A. I agree: J.A.