Fine in Lieu of Forfeiture

From Criminal Law Notebook

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]

Fine-in-Lieu is Not Punishments An order under s. 462.37 is not a punishment.[2]

Requirements

462.37
...

Fine instead of forfeiture

(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) 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.

...
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


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The fine amount "must represent an amount equal to the accused’s interest in the property which could not be located for forfeiture".[3]

"Property" within s. 462.37 is defined in s. 2 of the Code.

Discretion to Order Fine

Where the criteria are met the Court has limited discretion to refuse to make the order.[4]

Ability to Pay

Ability to pay is not to be taken into account in assigning the value to the fine of lieu of forfeiture.[5]

Instead, the court may alleviate the severity of the fine only by extending the time to pay.[6]

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.[7]

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.[8]

Fine Option Program

Under s. 462.27(5), the fine options program is not eligible.[9]

Priority of Orders

A concurrent restitution order can be ordered to take precedent over a fine in lieu of forfeiture. [10] Payments made to a restitution order can be used to offset the amount of the fine.[11]

  1. ↑ R v Angelis, 2016 ONCA 675 (CanLII), per Watt JA, under appeal
  2. ↑ Angelis, ibid.
  3. ↑ R v Fleming, 2016 ONSC 2805 (CanLII), per Kurke J, at para 22
    R v Lavigne, 2006 SCC 10 (CanLII), per Deschamps J, at paras 10 to 21, 29 to 37, 44
  4. ↑ Lavigne, supra
    R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 110
  5. ↑ Fleming, supra, at para 22
  6. ↑ Fleming, supra, at para 22
    Lavigne, supra, at paras 45 to 48
  7. ↑ R v Piccinini, 2015 ONCA 446 (CanLII), per curiam, at para 19
  8. ↑ Fleming, supra, at paras 29 to 32
    R v AS, 2010 ONCA 441, per curiam, at para 14
  9. ↑
    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).
  10. ↑ Walker, supra, at para 113
  11. ↑ Walker, supra, at para 113
    R v Dhanaswar, 2016 ONCA 229 (CanLII), per curiam

Fine Option Program

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

462.37
...

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).
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


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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.

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
...

Imprisonment in default of payment of fine

(4) Where a court orders an offender to pay a fine pursuant to subsection (3), 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.

...
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.


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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, per Monnin JA
  2. ↑ R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 109
  3. ↑ Walker, ibid., at para 109
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