Have you faced scary charges such as Careless Driving, Driving without Insurance or Stunt Driving?
- Careless Driving holds a fine of $490 plus 6 demerit points
- Stunt Driving holds a minimum fine of $2000 plus 6 demerit points
- Driving without Insurance holds a minimum fine of $5000, a license suspension and immediate motor-vehicle seizure
Whether guilty or not, everyone makes mistakes, BUT, not everyone knows their options when facing hefty charges such as the few listed above.
Section 59, Provincial Offences Act (R.S.O. 1990, c. P.33)
Provincial Prosecutors sometimes include section 59 to charges where the minimum fine is excessive.
Provision for a Minimum Penalty
59 (2) The provision that creates the penalty for an offence prescribes a minimum fine; but, this is subject to the opinion of the court and what exceptional circumstances exist. Thus, to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.
What this means is that the person charged or his/her lawyer/paralegal may provide the Court with submissions to sway a Justice of the Peace that he/she has an exceptional circumstance which imposing such a fine would be unduly oppressive or not in the interests of justice.
There is no straightforward definition for exceptional circumstance and a Justice of the Peace will make his or her decision on a case-by-case basis.
As of recently, these arguments have become much more difficult. In the recent case, R. v Henry of Pelham, 2018 ONCA 999, there was no evidence the offender was unable to pay the fine.
The Court concluded:
“the discretionary power set out in s. 59(2) must be applied with appropriate restraint, lest it undermine provincial legislative policy governing public welfare offences — a policy that emphasizes deterrence.” (at para 3).
And further, at paragraph 50:
“Proportionality is a relevant consideration in setting a fine above the prescribed minimum, but the principle cannot be invoked to subvert the Legislature’s decision to establish a minimum fine”
A Justice of the Peace is now bound to ‘set the bar of relief very high’ and finds that having difficulty in paying a minimum fine is inadequate to justify relief (at para 63).
Why do you need a lawyer to advocate for you?
Defence counsel will review the case before them with their clients prior to entering a plea of guilt. The chances of obtaining judicial relief post R v. Phelham is difficult, however, not impossible.
If you are facing more than one charge with a minimum fine, it is possible for defence counsel to negotiate other options in the best interest of their client.
Regardless of what you are charged with, a lawyer can help you.
Contact Millars Lawyers when you Can’t Afford to Lose (519) 657-1LAW or info@ml-dev.thirdeyeinsights.ca
By: Michael Johnson
