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HOW TO SEEK REMISSION OF A PENALTY

The Remission of Penalties Act R.S.N.S. 1989, c. 397 allows judges to reduce fines, even the minimum fines set by provincial law.  


However, it doesn’t provide any guidance though as to what should be taken into account when that is being considered.


If you have good reason as to why payment of the fine would be unjust, bring your proof to the sentence hearing.   


Perhaps your income is very low ... Bring your tax return, pay stubs, EI slip, etc.  


Perhaps your involvement in the offence was minimal  


Perhaps the violation was a mere technical one and a minimum fine would be unjust.


R. v. Lewandowski, 2010 NSPC 37  sets out some principles that may apply.


Per Judge J Campbell:

...

41)     The minimum penalty cannot simply be ignored or treated as a helpful suggestion.  The penalties are generally applicable.  Judicial discretion has to be exercised bearing in mind that penalties are already set to address individual circumstances within the range set by the legislation, in the knowledge that  minimum penalties may not be perfectly appropriate in some cases.  The exercise of discretion must bear in mind the cost to predictability.  Discretion should be exercised only when the minimum fine offends  legal norms such as fairness and proportionality.  I should not exercise my discretion to remit a fine simply because I prefer another result or because I just don’t like the amount of the fine.  Does the case “scream out” to be treated differently?


 42)   There may be situations, for example, where a merely technical breach of a provincial statute or municipal  by-law would scream out for a reduced penalty.  There may be  no requirement for specific or general deterrence.  Even a minimum fine may be seen as doing anything but promoting the respect for justice.  In those cases, it may be reasonable to remit the penalty.  There may also be offences where the conduct is so serious that a remission of penalty would be wrong, and the principles of  deterrence and denunciation have to trump the consideration of personal circumstances of the person.

 43)   The circumstances of the person who is called upon the pay the fine should be considered.  That may involve his or her own financial situation and it may involve his or her actions.  A minimum penalty may affect a person in a way that is grossly disproportionate having regard to that person’s  income.  Fines of course impact every person differently.  There are cases where that different impact is so pronounced that it is manifestly unfair, even when consideration is given to fine options programs and an extended period of time is allowed for payment.  A fine is not proportional to the seriousness of the offence if the person will feel the impact of the fine in a way that is grossly disproportionate to others.  In that situation a case may “scream out” for different treatment.

Jim O'Neil, LL.B.

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