Restitution

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General Principles

Sections 737.1 to 741.2 deal with restitution to victims of crime.

Court to consider restitution order
737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
Adjournment
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Form
(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.
Reasons
(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.
2015, c. 13, s. 29.


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Appellate Review
A sentencing judge making a restitution order is "entitled to deference". The appellate court should intervene only "on the gasis of error in principle or if the order is excessive or inadequate".[1]

  1. R v Castro, 2010 ONCA 718 (CanLII), at para 22 per Weiler JA.
    Devgan (1999), 1999 CanLII 2412 (ON CA) at para 24 per Labrosse JA

Stand-alone Restitution

A restitution order can be made at the time of sentencing under s. 738:

Restitution to victims of offences
738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;


[see below for details on (b) and (c) relating to violent offences and (d) and (e) relating to identity and sexting offences]
...
Regulations
(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24.


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Restitution can be ordered to require the offender to pay a sum of money to compensate a party for a proven loss. Restitution is ordered as either a term of a probation order or else as a stand alone restitution order.[1] A stand alone restitution order has no time limit for repayment and may be registered as a civil judgement[2] which in turn could be used to garnish wages and seize property.

Purpose of Restitution
Restitution is intended to rehabilitate the offender by making him immediately responsible for the loss of the victim. It also gives the victim a speedy means of getting money back.[3]

The purpose of the order is to be part of the sentence, not to compensate for losses.[4]

One of the primary goals of restitution orders is to deprive "offender of the fruits of his or her crime"[5]

Burden
Once an offence of fraud is fully established by the Crown, "the burden to establish that there is no money (and necessarily where it went) falls to the offender".[6]

Effect
Restitution orders are to be treated as "part of the determination of an overall fit sentence, and general sentencing principles apply".[7]

Under s. 178 (1)(a) of the Bankruptcy and Insolvency Act, a restitution order will survive bankruptcy.[8]

Considerations on Ordering Restitution
Whether to grant restitution is considered as part of the "totality" of the punishment.[9] Typically, the offender should have some ability to pay the amount, either at sentencing or in the future.[10]

Objectives and factors for the discretionary ordering restitution are as follows:[11]:

  1. An order for compensation should be made with restraint and caution;[12]
  2. The concept of compensation is essential to the sentencing process:
    1. it emphasizes the sanction imposed upon the offender;
    2. it makes the accused responsible for making restitution to the victim;
    3. it prevents the accused from profiting from crime; and
    4. it provides a convenient, rapid and inexpensive means of recovery for the victim;
  3. A sentencing judge should consider;
    1. the purpose of the aggrieved person in invoking s. 725(1);
    2. whether civil proceedings have been initiated and are being pursued; and
    3. the means of the offender.
  4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.
  5. It should not be ordered when the amount is unclear.[13]
  6. A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
  7. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.
  8. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
  9. Any serious contest on legal or factual issues should signal a denial of recourse to an order;
  10. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and
  11. A compensation order may be appropriate where a related civil judgement has been rendered unenforceable as a result of bankruptcy.

No single factor should be determinative on whether restitution should be ordered.[14]

Where the offence involves a breach of trust, the "paramount consideration must be the victims' claims".[15]

A judge is entitled to conclude that pursuit of a civil judgment by victims would be unfair due to the obstacles in their path to recovery.[16]

Connection Between Offender and Loss
An order under s. 738(1)(a) requires that the loss be "as a result of the commission of the offence". This necessarily requires proof that the accused had was "involved" or had a "role" in the criminal activity.[17]

Recipient
Restitution under section 738(1)(a) can be made payable to the insurance company that paid for repairs. [18]

Quantum
The judge has discretion to order less than the full amount of restitution owed.[19]

Ability to Pay
Section 739.1 removes from consideration the "offender's financial means or ability to pay" in assessing an order under s. 738 or 739.[20]

An offender's means has limited importance in cases of fraud.[21]


  1. s. 738
  2. see s. 741
  3. R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005
    R v Yates, 2002 BCCA 583 (CanLII)
  4. See R v Castro, 2010 ONCA 718 (CanLII) at paras 26 and 43
  5. Johnson at para 29
  6. R v Johnson, 2010 ABCA 392 (CanLII) at para 23 -Fraud for $1.7 million completely on accounted for
  7. R v Castro
  8. Johnston at para 30
  9. R v Siemens, 1999 CanLII 18651 (MB C.A.)
  10. R v Dashner, (1973), 15 CCC (2d) 139 (BCCA)
    R v Biegus, 1999 CanLII 3815 (ON C.A.)
    R v Brown, 1999 BCCA 592 (CanLII)
    R v Fitzgibbon
  11. R v Devgan 1999 CanLII 2412 (ON C.A.)
    See also: R v Zelensky, 1978 CanLII 8 (SCC), [1978] 2 SCR 940 at 111-13
    R v Fitzgibbon at 454-55
    London Life Insurance Co. v Zavitz at 270
    R v Scherer, (1984), 16 CCC (3d) 30 (Ont. C.A.) at 37-38
    R v Salituro, (1990), 56 CCC (3d) 350 (Ont. C.A.) at 372-73
    R v Horne 1996 CanLII 8051 (ON S.C.), (1996), 34 O.R.(3d) 142 (Gen. Div.) At 148-49
    R v Carter at 75 - 76
  12. R v Zelensky
  13. R v Castro, 2010 ONCA 718 (CanLII) at paras 26 and 43
  14. R v Castro at para 27
  15. Johnson at para 29
    Castro, at para 28
    R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005 at 1014-1015
  16. Johnson at para 30
  17. R v DeBay, 2001 NSCA 48 (CanLII) at para 3
    R v Brown, 2010 NSPC 38 (CanLII) at paras 17 to 21
  18. R v Popert, 2010 ONCA 89 (CanLII)
  19. Yates
  20. Cases assessing ability to pay prior to 2015: R v Ratt, 2005 SKCA 110 (CanLII)
    R v DeBay, 2001 NSCA 48 (CanLII)
    R v Biegus, 1999 CanLII 3815 (ON CA)
    R v Yates, at paras 12 and 17
  21. Johnson at para 29
    R v Cadieux, 2004 ABCA 98 (CanLII), at para 9

Offences of Violence

Section 738 states:

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
...

(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable;
(c) in the case of bodily harm or threat of bodily harm to the offender’s spouse or common-law partner or child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of the offender, where the spouse or common-law partner, child or other person was a member of the offender’s household at the relevant time, by paying to the person in question, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, where the amount is readily ascertainable;


...
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24.


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Specific Offences

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
...

(d) in the case of an offence under section 402.2 or 403, by paying to a person who, as a result of the offence, incurs expenses to re-establish their identity, including expenses to replace their identity documents and to correct their credit history and credit rating, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable; and
(e) in the case of an offence under subsection 162.1(1), by paying to a person who, as a result of the offence, incurs expenses to remove the intimate image from the Internet or other digital network, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.

R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24.


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Restitution to Good Faith Recipients

Restitution can be ordered to the benefit of a third party (non-victim) where the third party receives something of value in good faith that must be returned to the victim.

Restitution to persons acting in good faith
739 Where an offender is convicted or discharged under section 730 of an offence and

(a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or
(b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,

the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.
R.S., 1985, c. C-46, s. 739; R.S., 1985, c. 27 (1st Supp.), s. 163, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6.


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Payment Due Date and Schedule

Payment under order
739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.
2015, c. 13, s. 30.


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Multiple Offenders

More than one person
739.3 An order under section 738 or 739 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
2015, c. 13, s. 30.


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Priority of Restitution

Priority to restitution
740 Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739, and

(a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or
(b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine,

the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.
R.S., 1985, c. C-46, s. 740; 1995, c. 22, s. 6.


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Enforcement

Enforcing restitution order
741 (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender
(2) All or any part of an amount that is ordered to be paid under section 738 or 739 may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
R.S., 1985, c. C-46, s. 741; R.S., 1985, c. 27 (1st Supp.), s. 164; 1995, c. 22, s. 6; 2004, c. 12, s. 13; 2015, c. 13, s. 31.


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Notice of orders of restitution
741.1 If a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2), to the public authority and the person to whom the public authority is to remit amounts received under the order.
R.S., 1985, c. 24 (2nd Supp.), s. 47; 1992, c. 11, s. 14, c. 20, s. 202; 1995, c. 19, s. 37, c. 22, s. 6; 2015, c. 13, s. 32.


CCC

Civil remedy not affected
741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.
1992, c. 20, s. 203; 1995, c. 22, s. 6, c. 42, s. 75.


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Specific Types of Restitution

A Tow-truck bill arising from the seizure of the accused vehicle purchased with proceeds of crime is not the subject of forfeiture.[1]

  1. R v Wellington, 2003 ABQB 12 (CanLII)

See Also