Fine in Lieu of Forfeiture

From Criminal Law Notebook
This page was last substantively updated or reviewed October 2023. (Rev. # 93071)

General Principles

See also: Forfeiture of Proceeds of Crime

Where the judge finds that property can be forfeited under s. 462.37(1) or (2.01) as "proceeds of crime", the court has the ability order that the offender pay a fine instead where that property is not available for forfeiture.

Purpose of Provision

The purpose of fines in lieu of forfeiture is intended to replace the proceeds of crime with their monetary equivalent.[1]

Burden

Crown has to prove possession of proceeds of crime.[2] Not relevant whether the offender personally benefitted.[3] And not relevant how th eoffendder used proprety or how the money spent.[4]

Fine-in-Lieu is Not Punishments

An order under s. 462.37 is not a punishment.[5] However, there is some authority to translate Gladue factors onto the decision to order a fine-in-lieu of forfeiture.[6]

Requirements

462.37
[omitted (1), (2), (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1)]

Fine instead of forfeiture

(3) If a court is satisfied that an order of forfeiture under subsection (1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

(a) cannot, on the exercise of due diligence, be located;
(b) has been transferred to a third party;
(c) is located outside Canada;
(d) has been substantially diminished in value or rendered worthless; or
(e) has been commingled with other property that cannot be divided without difficulty.

[omitted (4) and (5)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4; 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 462.37(3)


Defined terms: "Canada" (s. 35 IA), "offender" (s. 2), and "property" (s. 2)

The fine amount "must represent an amount equal to the accused’s interest in the property which could not be located for forfeiture."[7]

Discretion to Order Fine

There is initial discretion on whether or not to make the order.[8] There is some authority to translate aboriginal identity factors ("Gladue" factors) onto the decision to order a fine-in-lieu of forfeiture.[9]

There is no discretion under s. 462.37(3) to limit the fine amount to the of the profit as opposed to amount of funds or value of property in possession or control.[10]

Factors to Not Impose Fine

There is limited discretion to impose fine-in-lieu.[11] Factors that courts may want to consider include:[12]

  1. Was the forfeitable property ever in the actual control or possession of the offender, except perhaps momentarily and in a technical sense?
  2. Did the offender benefit from the criminal activity and, if so, how?
  3. Did the offender have any stake in the ongoing criminal enterprise said to have generated the criminal proceeds?
  4. Has the offender cooperated with the authorities by identifying others engaged in the criminal activity, who played a more significant role than the offender, and who may well be in possession of the proceeds of crime which can be subject to forfeiture, or have the means of paying a fine in lieu of forfeiture? Exercising the discretion to not require a fine in lieu of forfeiture in a way that promoted the recovery of the criminal proceeds or an equivalent fine would promote the objectives of Part XII.2 of the Criminal Code.


Apportionment between Co-Accused

The court may adjust amount to avoid "double recovery" as between those who are convicted.[13] The parties must be those convicted and cannot be apportioned between those who are unindicted co-accused.[14]

It is not permitted to decline to make the order on the basis that:

  • the proceeds were already released to pay for legal fees.[15]
  • it may impact rehabilitative prospects.[16]
  • the ability to satisfy.[17]
Ability to Pay

Ability to pay is not to be taken into account in assigning the value to the fine of lieu of forfeiture.[18]

Instead, the court may alleviate the severity of the fine only by extending the time to pay.[19]

Fine Option Program

Under s. 462.27(5), the fine options program is not eligible.[20]

Valuation

The value of property is the "value of the property that was possessed or controlled" by the accused, not the amount of benefit received by the accused.[21]

Where the accused only keeps part of the money he receives, such as when receiving "buy money" from a drug deal, he could still be fined in the full amount he receives.[22]

Priority of Orders

A concurrent restitution order can be ordered to take precedent over a fine in lieu of forfeiture. [23] Payments made to a restitution order can be used to offset the amount of the fine.[24]

Constitutionality of s. 462.37(3)

The mandatory order is not unconstitutional as cruel and unusual under s. 12 of the Charter of Rights and Freedoms.[25]

  1. ↑ R v Angelis, 2016 ONCA 675 (CanLII), 340 CCC (3d) 477, per Watt JA, under appeal
  2. ↑ R v Vallières, 2022 SCC 10 (CanLII), per Wagner CJ, at para 36
    Angelis, supra at para 35
    R v Dwyer, 2013 ONCA 34 (CanLII), per Rosenberg JA, at paras 24 to 27
  3. ↑ Valliere at para 36
    Piccinini, 2015 ONCA 446 at para 19
    Siddiqi 2015 ONCA 374 at para 6
  4. ↑ Valliere at para 36
    Schoer, at para. 105; R. v. Dow, 2014 NBCA 15, 418 N.B.R. (2d) 222, at para. 37; R. v. S. (A.), 2010 ONCA 441, 258 C.C.C. (3d) 13, at para. 14
  5. ↑ Angelis, ibid.
    Valliere
    Lavigne
  6. ↑ R v Simpson, 2022 ONSC 6396 (CanLII), per Thomas J
  7. ↑ R v Fleming, 2016 ONSC 2805 (CanLII), per Kurke J, at para 22
    R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at paras 10 to 21, 29 to 37, 44
  8. ↑ R v Vallieres, 2022 SCC 10 (CanLII), per Wagner J, at para 35 ("judicial discretion applies first to the decision whether or not to impose a fine and second to the determination of the value of the property")
  9. ↑ Simpson, supra
  10. ↑ Vallieres, supra, at para 26
  11. ↑ R v Abdelrazzaq, 2023 ONCA 112 (CanLII), per Doherty JA
  12. ↑ Abdelrazzaq, ibid.
  13. ↑ Valliere, ibid.
  14. ↑ Valliere, ibid.
  15. ↑ R v Rafilovich, 2017 ONCA 634 (CanLII), 353 CCC (3d) 293, per Pardu JA
  16. ↑ Angelis, supra
  17. ↑ Angelis, supra
  18. ↑ Fleming, supra, at para 22
    Angelis, supra
  19. ↑ Fleming, supra, at para 22
    Lavigne, supra, at paras 45 to 48
  20. ↑
    Fine option program not available to offender
    (5) Section 736 does not apply to an offender against whom a fine is imposed pursuant to subsection (3).
  21. ↑ R v Piccinini, 2015 ONCA 446 (CanLII), per curiam, at para 19
  22. ↑ Fleming, supra, at paras 29 to 32
    R v AS, 2010 ONCA 441 (CanLII), 258 CCC (3d) 13, per curiam, at para 14
  23. ↑ Walker, supra, at para 113
  24. ↑ Walker, supra, at para 113
    R v Dhanaswar, 2016 ONCA 229 (CanLII), per curiam
  25. ↑ R v Abdelrazzaq, 2023 ONCA 112 (CanLII), per Doherty JA
    R v Chung, 2021 ONCA 188 (CanLII), per curiam

Fine Option Program

Under s. 462.27(5), the fine options program is not eligible:

462.37
[omitted (1), (2), (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1), (3) and (4)]

Fine option program not available to offender

(5) Section 736 [fine option program] does not apply to an offender against whom a fine is imposed pursuant to subsection (3) [order of forfeiture of proceeds of crime – fine instead of forfeiture].
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4; 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 462.37(5)


Defined terms: "offender" (s. 2)

Conditions of Order

The court may impose any terms of payment including a payment schedule.[1]

Variations on Conditions

The offender is permitted to ask for a variation in the terms of payment, including extending the time to pay, after defaulting on the payment.[2]

  1. ↑ R v Abdelrazzaq, 2023 ONCA 112 (CanLII), per Doherty JA, at para 58
  2. ↑ Abdelrazzaq, ibid., at para 60
    see also R. v. Yamelst (1975), 1975 CanLII 1348 (BC SC), 22 C.C.C. (2d) 502 (B.C.S.C.), at pp. 508-9.

Time to Pay

Where a judge makes and order for a fine in lieu of forfeiture a time is set in which to pay. Failure to make the payment in the requisite time may result in further jail time.

There is no limit on the amount of time that an offender can have to pay the fine.[1] Ability to pay is a valid consideration on setting the time to pay.[2]

Normal calculation of the time-to-pay begins after the accused is released from custody.[3]

  1. ↑ R v Abdelrazzaq, 2023 ONCA 112 (CanLII), per Doherty JA, at para 58
  2. ↑ Abdelrazzaq, ibid., at para 58
    R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at paras 47 to 48
  3. ↑ Abdelrazzaq, ibid.

Default Time

The period of imprisonment for failure to pay the fine is an enforcement mechanism to encourage payment.[1]

Section 462.37(4) addresses default penalties:

462.37
[omitted (1), (2), (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1) and (3)]

Imprisonment in default of payment of fine

(4) Where a court orders an offender to pay a fine pursuant to subsection (3) [order of forfeiture of proceeds of crime – fine instead of forfeiture], the court shall

(a) impose, in default of payment of that fine, a term of imprisonment
(i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,
(ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,
(iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,
(iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,
(v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,
(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or
(vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and
(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

[omitted (5)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4; 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.

– CCC (CanLII), (DOJ)

Note up: 462.37(4)

Section 462.37 imposes the following range of penalties:

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

The offender's rehabilitation is not a factor in considering a failure to pay the fine.[2] The offender's ability to pay is not a relevant factor in failure to pay.[3]

  1. ↑ R v Dritsas, 2015 MBCA 19 (CanLII), 19 CR (7th) 203, per Monnin JA
  2. ↑ R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 109
  3. ↑ Walker, ibid., at para 109

Ordering Imprisonment on Default

There is discretion whether to impose a period of imprisonment for failing to pay the fine order.[1]

The New factors include:

  1. ↑ R v Abdelrazzaq, 2023 ONCA 112 (CanLII), per Doherty JA
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