Can't pay fine not a reason for conditional sentence.

OTTAWA -- The Supreme Court of Canada recently ruled a conditional sentence imposed on a defendant in a cigarette contraband case was invalidly imposed because "where the offender's reasonable excuse for failure to pay a fine is simple poverty, it is not open to a court to jail him or her ...," even under a conditional sentence, which is still imprisonment, but in the community.

As well, in the majority ruling with one opposing view, the Court noted that "nowhere in the Criminal Code is it suggested that conditional sentences are available to enforce unpaid fines," as the trial judge interpreted when he sentenced Yu Wu to a conditional sentence of 75 days served in the community subject to a curfew instead of giving him reasonable time to pay the minimum penalty of $9,600 found in the Excise Act.

The trial judge, who based his sentencing on his conclusion that the defendant was "not now or in the foreseeable future able to pay such a heavy fine," because he was a welfare recipient, fined Mr. Wu the minimum penalty but gave him no time to pay, creating a default payment of the fine. In default of payment, Mr. Wu was then immediately given his conditional sentence. As well, the trial judge did not think that imprisonment for any length of time would be a fit sentence, and would have given a suspended sentence but for the minimum provisions in the Excise Act.