Modèle:SentencingBrief PART VIII
A. Restitution Orders
[X] As made out by the facts, the total loss to the victims was in the amount of
[X] Should restitution order be found suitable we should ask that the order be payable to persons and in the amounts found as indicated here:
| # | Victim Name | Contact | Amount |
|---|---|---|---|
| 1 |
[name] | [contact info] | [amount] |
| 2 |
A.1. Fine-in-Lieu of Restitution Orders
[X] The
- Order of forfeiture of property
462.37 (1) Subject to this section and sections 462.39 to 462.41, if an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
[X] The meaning of "designated offence" is defined in s. 462.3 as:
- i. Purpose of Fine-in-Lieu
[X]
- 10 The sentence imposed for an offence under Part XII.2 on proceeds of crime consists of two elements: the penalty for committing a designated offence (s. 462.3(1)), and forfeiture of the proceeds of crime (s. 462.37(1)). The new provisions are in addition to existing methods. The intention of Parliament is clear. Not only must the act itself be punished, but it must not benefit the offender. Parliament’s purpose in doing this is to ensure that crime does not pay. Although the appeal concerns the discretion of a court that imposes a fine instead of forfeiture, the objective of the primary provision must be correctly established for it to be possible to identify the objective of the provision authorizing this sentence.
...
16 Parliament’s intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purpose of the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The severity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crime themselves, or the equivalent thereof, may be forfeited. - R v Lavigne, 2006 SCC 10
- ii. Does Totality Factor into Fine-in-Lieu Order
[X]
- 25 The amicus curiae argues that the effect of imposing a fine without regard to the general principles of sentencing is to punish the offender twice. What that argument fails to consider is that those principles are not all disregarded and that a fine instead of forfeiture is seen as a separate component of the sentence. While such an order is technically part of the sentence, it is nevertheless distinguished by the fact that its purpose is to replace the proceeds of crime. It is not regarded as punishment specifically for the designated offence.
- Lavigne
- iii. Possession of Proceeds vs Control of Proceeds
[X]
- [50] Second, the appellants submit that the trial judge erred by imposing fines in lieu of forfeiture in the absence of proof that they received the funds that served as the basis for the fine amounts, $423,580.41 for Mr. Khatchatourov and $71,954.63 for Ms. Reznik. They argue that there was insufficient evidence that the appellants had possession or control over the funds, and therefore that the Crown had not proved the funds were “property” as defined in s. 2, and for the purpose of s. 462.37(3), of the Criminal Code.
[51] I do not accept this submission. Mr. Khatchatourov’s counsel said this at the sentence hearing:- [C]ertainly it is open to Your Honour to say: “Well, look, these cheques were made payable to him. Who knows what happened from there but it’s a reasonable inference that he got that money or had control of that money”….
- [52] This common sense concession is consistent with the evidence, which was that Mr. Khatchatourov and Ms. Reznik received cheques, made out in their names, from the fraudulent transactions totalling the precise amounts of the two fines. Absent some evidence (for example, testimony from the appellants at their sentence hearing) that the appellants did not cash the cheques and receive the funds, I see no reason to impose a duty on the Crown to take additional steps (for example, a tracing exercise) to try to obtain further proof that the appellants actually received the money generated by their frauds. Their receipt of the cheques is enough. Even in the increasingly complicated world of Canadian criminal law, some things are obvious.
- Khatchatourov, 2014 ONCA 464
- iv. Fine-in-Lieu Order Concurrent to Restititon
[X] It is permissible for the court to make an order of restitution
- v. Duration and Default Time for Fine-in-Lieu Order
[X]
| Section | Imprisonment | Fine Amount |
|---|---|---|
| 462.37(4)(a)(i) | 0 to 6 months | 0 to $10,000 |
| 462.37(4)(a)(ii) | 6 to 12 months | $10,000 to $20,000 |
| 462.37(4)(a)(iii) | 12 to 18 months | $20,000 to $50,000 |
| 462.37(4)(a)(iv) | 18 to 24 months | $50,000 to $100,000 |
| 462.37(4)(a)(v) | 2 to 3 years | $100,000 to $150,000 |
| 462.37(4)(a)(vi) | 3 to 5 years | $150,000 to $1,000,000 |
| 462.37(4)(a)(vii) | 5 to 10 years | $1,000,000 or more |
B. Ordonnances de confiscation
[X]
C. Ordonnances ADN
[X]
D. Ordonnances LERDS
[X]