The issue of judges occasionally trying to be very creative in their sentencing is not peculiar to Manitoba nor even Canada. In the United States there are examples in many states. Some judicial conduct commissions have even gone so far as to rule that there are ethical restrictions on the requirement that a defendant make a charitable contribution.

In R. v. CHOI, 2013 MBCA 73, August 22, 2013, the accused was convicted of an under section 124(1)(c) of the Immigration and Refugee Protection Act (IRPA).

The trial judge imposed a conditional discharge which included the following condition:

(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.

The circumstances involved were described by the Manitoba Court of Appeal in the following manner:

At the material time, the accused was the president, director and principal shareholder of two corporations which operated two sushi restaurants in Winnipeg.  The accused, by his guilty plea, admitted that he employed six foreign nationals to work at the restaurants, without authorization, for certain periods between June 22, 2008 and May 26, 2009.

 

The Crown appealed from the sentence imposed. The Crown argued that “the sentencing judge committed an error in principle by argues that the condition, which ordered that the accused make a charitable donation of $6,000 to each of two named charities, was an optional condition imposed, in error, under s. 732.1(3)(h) of the Criminal Code (the Code).  It says that the only legal justification 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 society and facilitate the successful reintegration of the offender into the community after his crime.

The Crown asserts that the judge was silent in her reasons for sentence as to how such charitable donations would or could accomplish those purposes in the circumstances of this case.  This error in principle, argues the Crown, makes the sentence unfit.”

 

The Court of Appeal held that “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.” The Court of Appeal concluded that “the accused’s conduct should be denounced, and a conditional discharge does not amount to adequate denunciation…Moreover, general deterrence is required and is not adequately addressed by a conditional discharge.”

The Court of Appeal set aside the discharge and imposed a fine of $15,000.00.