December 6, 2013 Sections
Winnipeg Free Press - PRINT EDITION
ALLOWING offenders to donate to charity as part of their sentences is an "unseemly" practice that creates an impression of "unequal justice," deprives the government of cash and invites questions about bias in Manitoba's criminal courts, the province's top court has ruled.
The Court of Appeal made the findings Thursday in handing down a strongly worded decision in the case of the former owner of a Corydon Avenue sushi restaurant who pleaded guilty last year to illegally employing six foreign workers between June 2008 and May 2009.
A rarely seen five-justice panel of the Appeal Court unanimously ruled provincial court Judge Mary Kate Harvie's decision to hand former Kenko Sushi owner Jung Won Choi a conditional discharge -- plus probation including a requirement to donate $6,000 each to two Winnipeg charities -- resulted in an unfit sentence and had to be struck down.
In law, terms of probation cannot be "punitive" as the donation clearly was meant to be, Justice Alan MacInnes said.
"The facts make it clear that this breach of the (Immigration and Refugee Protection Act) was not the result of carelessness, mistake or lack of due diligence. Rather it was wilful conduct in knowing violation of the rules," MacInnes stated, indicating Harvie didn't denounce Choi's illegal conduct properly.
The court instead imposed a conviction on Choi, 58, and a $15,000 fine, meaning the guilty finding will now stay on his record. The current Edmonton resident was given 60 days to pay.
Five top justices heard the Crown appeal in the case because it was clear it was being asked to rethink the court's prior position on judges allowing charitable donations as a sanction for offenders. It's a topic it bluntly came down against more than three decades ago.
"The less we hear of this practice, the better," the court ruled in 1981.
MacInnes and his colleagues in 2013 appear to take the same view on the practice today, saying it could have an "adverse impact" on the administration of justice.
The court suggested in cases where a conditional discharge is arrived at, it could give the "unseemly appearance" a person of means was able to essentially buy their way out of having a criminal record.
Also concerning, MacInnes said, was how the practice could be seen to raise questions about bias.
"Where a judge orders payment of a donation to a particular charity, whether in compliance with the submission of counsel, or more significantly, of his/her own choosing the question may be asked: 'Why did judge pick charity 'X' and not charity 'Y?' Did the judge or counsel have some connection to the charity in question?" MacInnes wrote.
While contextually different, the court's decision comes weeks after Manitoba prosecutor Sean Brennan was fired after justice officials discovered he dropped charges against a Winnipeg company -- only to have that company make a $65,000 donation to a charity he oversees.
The incident happened more than 18 months ago, but news of the incident only surfaced this summer.
MacInnes added government misses out on revenue to cover the cost of investigations and prosecutions when donations take the place of fines.
-- with files from Mike McIntrye
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Republished from the Winnipeg Free Press print edition August 23, 2013 A5
Updated on Friday, August 23, 2013 at 11:03 AM CDT:
Adds text of decision.