Criminal Code of Canada - section 748.1(1) - Remission by Governor in Council

section 748.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

The Governor in Council may remit fines or forfeitures imposed under an Act of Parliament.

SECTION WORDING

748.1(1) The Governor in Council may order the remission, in whole or in part, of a fine or forfeiture imposed under an Act of Parliament, whoever the person may be to whom it is payable or however it may be recoverable.

EXPLANATION

Section 748.1(1) of the Criminal Code of Canada allows the Governor in Council to order a remission of a fine or forfeiture that has been imposed under an Act of Parliament. This means that the decision to remit or reduce the fine or forfeiture is left to the discretion of the Governor in Council, who may consider factors such as the severity of the offense committed, the financial situation of the person responsible for the fine or forfeiture, and whether the remission would serve the public interest. The power to remit a fine or forfeiture can be used in a variety of situations, including cases where the fine or forfeiture imposed is considered excessive or disproportionate to the offense committed. It can also be used to provide relief to individuals who may be struggling financially or to correct a procedural error that led to the imposition of the fine or forfeiture. However, it should be noted that the power to remit a fine or forfeiture is discretionary, and the decision to remit or reduce a fine or forfeiture is not automatic. It is also important to note that the Governor in Council may only order a remission under an Act of Parliament, meaning that fines or forfeitures imposed under other laws may not be eligible for remission under this section. Overall, Section 748.1(1) provides a mechanism for the government to use its discretion to adjust fines or forfeitures imposed under existing laws, with the aim of ensuring that justice is served and that the public interest is protected.

COMMENTARY

Section 748.1(1) of the Criminal Code of Canada is an important provision that authorizes the Governor in Council to remit fines or forfeitures imposed under an Act of Parliament. While fines and forfeitures serve as a means of punishment for offences, there are situations where it may be necessary to remit or reduce the amount payable, whether due to mitigating circumstances or the inability of the offender to pay. The key feature of this provision is that it empowers the Governor in Council to order the remission of fines or forfeitures, which is often necessary where such penalties may cause undue hardship or injustice. For example, where an offender has committed a minor offence but is unable to pay the fine due to poor financial circumstances, a remission of the fine may be appropriate to avoid further harm to the offender and their family. Similarly, where a forfeiture would result in the loss of assets or property that are critical to the offender's livelihood, a partial remission may be necessary to strike a balance between justice and mercy. Moreover, the scope of this provision is quite broad, as it allows for remission "whoever the person may be to whom it is payable or however it may be recoverable." This means that the Governor in Council can remit fines or forfeitures regardless of whether they are payable to the government, a private party or a court. As a result, the provision is flexible enough to accommodate a wide range of scenarios where remission may be warranted. It is important to note, however, that the power to remit fines or forfeitures is not absolute. The Governor in Council must exercise this power within the bounds of the law and in accordance with the principles of natural justice. This means that the Governor in Council must consider relevant factors and apply their discretion in a fair and consistent manner, so as to prevent arbitrary or discriminatory decisions. In addition, the provision does not apply to all fines or forfeitures, as there are exceptions for certain categories of penalties. For example, fines or forfeitures that are imposed under the Income Tax Act, the Excise Tax Act or the Canada Pension Plan are excluded from this provision. This reflects the fact that these penalties are subject to a separate remission process under those respective statutes. Overall, Section 748.1(1) serves an important role in ensuring that fines and forfeitures are not unduly harsh or disproportionate to the offence committed. By empowering the Governor in Council to remit such penalties, it allows for flexibility and discretion in the administration of justice, without compromising the integrity of the justice system.

STRATEGY

Section 748.1(1) of the Criminal Code of Canada provides the Governor in Council with the power to remit fines or forfeitures imposed under an Act of Parliament. This provision enables the Governor to exercise his pardoning power, and it grants considerable discretion to the executive branch regarding the remission of fines and forfeitures. In light of this provision, what are some strategic considerations when dealing with remission of fines or forfeitures, and what strategies could be employed for the same? One of the critical strategic considerations revolves around the discretionary nature of this provision. Because the Governor has broad discretion when it comes to the remission of fines and forfeitures, the relief granted under this provision can be highly arbitrary, politicized and unpredictable. To mitigate against these risks, it is essential to build strong legal arguments and factual justifications for the remission of the fine or forfeiture. For example, if the imposition of the fine is disproportionate to the gravity of the offence or if the person subject to the fine has demonstrated a good record of behaviour, the remission of the fine may be justified. Alternatively, if there are mitigating circumstances that suggest a fairer outcome, such as the financial hardship of the individual or the extenuating circumstances surrounding the offence, such circumstances could be highlighted when making an application for remission. Another critical strategic consideration is the timing of the application for remission. Ideally, one should apply as early as possible so as to take advantage of the available timelines and precedents. For instance, an individual who has recently been subject to a fine or forfeiture may apply for remission at the earliest opportunity. Alternatively, if the individual is facing an ongoing legal process, obtaining advice on whether to apply for remission before or after any potential conviction is an essential strategy to pursue. This approach can help to guard against further fines or forfeitures being imposed, which would then increase the amount of remission required. Keeping an up-to-date understanding of the remission procedure is another strategic consideration. Given the discretion involved, the procedure is subject to change. Awareness of the application requirements and the supporting documentation that will be required during the application is thus vital. An understanding of which Acts of Parliament permit the application of remission of fines and forfeitures is equally necessary as the availability of the remission relief needs to be judiciously evaluated. In implementing strategic measures, an organization or individual looking to utilize the provisions needs to have access to legal professionals or consultants with specialized knowledge in criminal law and policy. An expert who has experience in criminal law, the remission procedure, and political awareness, can assist in identifying factors that are relevant to a given site and developing a plan appropriately. Given that the remission procedure is often highly discretionary and denotes that informed officials exercise the remission, the expertise of the legal adviser could significantly inform the quality of the application. It is also important to note that the strategic considerations outlined above need to be informed by ethical considerations. While the remission of fines or forfeitures can be an important relief mechanism for the individual concerned, it is also critical to weigh the impact of the fine or forfeiture on society or the victim of the offence. Failure to consider the broader implications of the remission of the fine or forfeiture could result in an unsound and ill-judged decision. In conclusion, the remission of fines and forfeitures under section 748.1(1) of the Criminal Code of Canada is subject to various strategic considerations, which need to be deliberately evaluated. Such considerations include the discretion involved, timing, procedural changes, the legal and ethical dimensions, keeping up to date with the changes, and involving specialized expertise in criminal law and policy. These strategic considerations require a thorough evaluation so that their implications for a given setting can be fully understood, and appropriate strategies are designed and implemented in tandem.