Here’s a brain teaser: Suppose
you were convicted of a crime or
regulatory offence and were
facing either a fine or time in jail.
Which would you hope the judge
would impose?
The answer might well depend
on your personal “exchange rate”
between the two forms of punishment. If the maximum fine were
only $100, you’d probably pay it
gladly rather than suffer the ignominy of jail .
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 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 consider a year or two in
jail—especially if I could get a lot
of backlogged writing done.
Everybody has some notional
exchange rate between being
locked up and being deprived of
money, although the pivot point
varies from one person to the next.
The Criminal Code has long
recognized that there is a tradeoff.
OPINION
KAREN
SELICK
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 six
months in jail. The code’s exchange
rate between money and incarceration thus varies from a paltry
$1.11 a day, to a hefty $1,366 a 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 of
Rights and Freedoms is engaged if
he faces the possibility of jail upon
conviction, but not if it’s a “mere”
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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—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 atro-phies. Some people actually move
ahead with their lives while they’re
in jail. Marc Emery, Canada’s
“Prince of Pot,” recently obtained
his Grade 12 diploma while in a
U.S. jail.
Famous works have been writ-
ten 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 Mohandas Gandhi,
Oscar Wilde and Martin Luther
King, Jr. As English parliamentar-
ian 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 fine’s size, it can
also deprive him of the other free-
doms. Although Canadian courts
routinely and cavalierly dismiss
economic liberty as of little import-
ance, people actually take the loss
of their money very seriously. Mar-
riages break down over money. A
spate of suicides occurs during
every financial crisis.
If there were any rational distinctions between what the law
considers a crime and what it considers as a “remedial” or “
regulatory” statute, these have long since
blurred into oblivion. Canada’s
nine top jurists couldn’t agree
among themselves on what was
criminal and what was regulatory
when the Supreme Court was
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
Act protester Bruce Montague
spent six months in jail for not
doing the paperwork for his guns.
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
destroy their subjects’ freedom by
taking their money rather than
locking them up. n
Karen Selick is the litigation director for the Canadian Constitution Foundation.
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