Criminal Law Notebook

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 [order of discharge] 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 [restitution orders] or 739 [restitution orders].

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 [forms] in Part XXVIII [Pt. XXVIII – Miscellaneous (ss. 841 to 849)] 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.
[annotation(s) added]

– CCC

Note up: 737.1(1), (2), (3), (4), and (5)

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), per Weiler JA, at para 22 ("A restitution order forms part of a sentence. In accordance with general sentencing principles, a restitution order is entitled to deference and an appellate court will only interfere with the sentencing judge's exercise of discretion on the basis of error in principle or if the order is excessive or inadequate")
    R v Devgan, 1999 CanLII 2412 (ON CA), per Labrosse JA, at para 24

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 [order of discharge] 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;
[omitted (b), (c), (d) and (e)]
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; 2019, c. 25, s. 302.
[annotation(s) added]

– CCC

Note up: 738(1) and (2)

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 the 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 states:

Ability to pay

739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 [(Stand-alone) restitution to victims of offences] or 739 [Restitution to persons acting in good faith].
2015, c. 13, s. 30.

[annotation(s) added]

– CCC

Note up: 739.1

Section 739.1 removes from consideration the "offender's financial means or ability to pay" in assessing an order under s. 738 [(Stand-alone) restitution to victims of offences] or 739 [Restitution to persons acting in good faith].[20] There is also authority stating that the section codifies the common law that states that ability to pay is always a factor but is "not necessarily determinative".[21]

An offender's means has limited importance in cases of fraud.[22]

A failure to consider the offender's patent inability to pay restitution must be considered before ordering restitution.[23]

The meaning of "ability to pay" includes present and future ability to pay.[24]

  1. ↑ s. 738
  2. ↑ see s. 741
  3. ↑ R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005, per Cory J
    R v Yates, 2002 BCCA 583 (CanLII), per Prowse JA
  4. ↑ See R v Castro, 2010 ONCA 718 (CanLII), per Weiler JA, at paras 22, 26 and 43
  5. ↑ R v Johnson, 2010 ABCA 392 (CanLII), per curiam, at para 29
  6. ↑ Johnson, supra, at para 23 - Fraud for $1.7 million completely on accounted for
  7. ↑ Castro, supra
  8. ↑ Johnson, supra, at para 30
  9. ↑ R v Siemens, 1999 CanLII 18651 (MB C.A.), per Huband JA
  10. ↑ R v Dashner, 1973 CanLII 1372 (BCCA), 15 CCC (2d) 139 (BCCA), per McFarlane JA
    R v Biegus, 1999 CanLII 3815 (ONCA), per Feldman JA
    R v Brown, 1999 BCCA 592 (CanLII), per Ryan JA
    Fitzgibbon, supra
  11. ↑ R v Devgan, 1999 CanLII 2412 (ONCA), per Labrosse JA
    See also: R v Zelensky, 1978 CanLII 8 (SCC), [1978] 2 SCR 940, 41 CCC (2d) 97, per Laskin CJ, at p. 111-13 (CCC)
    Fitzgibbon, supra, at pp. 454-55
    London Life Insurance Co. v Zavitz, at 270
    R v Scherer, 1984 CanLII 3594 (ON CA), 16 CCC (3d) 30 (Ont. C.A.), per Martin JA, at pp. 37-38 (CCC)
    R v Salituro, 1990 CanLII 10984 (ON CA), 56 CCC (3d) 350 (Ont. C.A.), per Blair JA, at pp. 372-73 (CCC)
    R v Horne, 1996 CanLII 8051 (ON SC), 34 O.R.(3d) 142 (Gen. Div.), per Watt J, at pp. 148-49 (CCC)
    R v Carter, [1990] OJ No 3140, 9 C.C.L.S. 69 (Gen. Div.)(*no CanLII links) at 75 - 76 (CCLS)
  12. ↑ Zelensky, supra
  13. ↑ R v Castro, 2010 ONCA 718 (CanLII), per Weiler JA, at paras 26 and 43
  14. ↑ Castro, supra, at para 27
  15. ↑ Johnson, supra, at para 29
    Castro, supra, at para 28
    R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005, per Cory J, at pp. 1014-1015 (SCR)
  16. ↑ Johnson, supra, at para 30
  17. ↑ R v DeBay, 2001 NSCA 48 (CanLII), per Cromwell JA, at para 3
    R v Brown, 2010 NSPC 38 (CanLII), per Derrick J, at paras 17 to 21
  18. ↑ R v Popert, 2010 ONCA 89 (CanLII), per Gillese JA
  19. ↑ Yates, supra
  20. ↑ Cases assessing ability to pay prior to 2015: R v Ratt, 2005 SKCA 110 (CanLII), per Lane JA
    R v DeBay, 2001 NSCA 48 (CanLII), per Cromwell JA
    R v Biegus, 1999 CanLII 3815 (ON CA), per Feldman JA
    R v Hudson, 1981 CanLII 3222 (ON CA), per Brooke JA
    103956 Canada Ltd. v Moniuk, 1981 CanLII 3350 (NWT SC), 61 CCC (2d) 285
    Yates, supra, at paras 12 and 17
  21. ↑ R v Simoneau, 2017 QCCA 1382 (CanLII)
  22. ↑ Johnson, supra, at para 29
    R v Cadieux, 2004 ABCA 98 (CanLII), per Ritter JA, at para 9
  23. ↑ R v Kelly, 2018 NSCA 24 (CanLII), per Beveridge JA (chambers), at para 55("With respect, the failure to appropriately consider the offender’s patent inability to pay such a restitution order reflects legal error.")
  24. ↑ Simoneau, supra

Offences of Violence

Section 738 states:

Restitution to victims of offences

738 (1) Where an offender is convicted or discharged under section 730 [order of discharge] 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:

[omitted (a)]
(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 intimate 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 intimate 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;

[omitted (d), (e) and (2)]
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; 2019, c. 25, s. 302.
[annotation(s) added]

– CCC

Note up: 738(1)

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:
[omitted (a), (b) and (c)]

(d) in the case of an offence under section 402.2 [identity theft] or 403 [identity fraud], 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) [distribution of intimate images – offence], 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.

[omitted (2)]
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; 2019, c. 25, s. 302.
[annotation(s) added]

– CCC

Note up: 738(1)

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 [order of discharge] 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.

– CCC

Note up: 739

Payment Due Date and Schedule

Payment under order

739.2 In making an order under section 738 [restitution orders] or 739 [restitution orders], 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.
[annotation(s) added]

– CCC

Note up: 739.2

Multiple Offenders

More than one person

739.3 An order under section 738 [restitution orders] or 739 [restitution orders] 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.
[annotation(s) added]

– CCC

Note up: 739.3

Where a judge finds were "equal participants in a joint in common enterprise" it would not be unfair to order a restitution order that makes both accused fullly liable for the entire amount.[1]

  1. ↑ R v Katchatourov, 2014 ONCA 464 (CanLII), per MacPherson JA, at para 67
    R v Gibb, 2014 ONSC 5316 (CanLII), per Daley J, at para 100

Order in Favour of Designated Public Authority

Section 739.4 permits a sentencing judge to order a restitution order to be in favour of a designated public authority who is "responsible for enforcing the order".

What constitutes a proper "public authority" is set out by applicable regulations.

Public authority

739.4 (1) On the request of a person in whose favour an order under section 738 [restitution orders] or 739 [restitution orders] would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.

Orders

(2) The lieutenant governor in council of a province may, by order, designate any person or body as a public authority for the purpose of subsection (1) [public authority designated to enforce order].
2015, c. 13, s. 30.
[annotation(s) added]

– CCC

Note up: 739.4(1) and (2)

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 [restitution orders] or 739 [restitution orders], 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.
[annotation(s) added]

– CCC

Note up: 740

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 [imposition of conditions on probation order], 738 [restitution orders], 739 [restitution orders] or 742.3 [conditions of conditional sentence order] 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 [restitution orders] or 739 [restitution orders] 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.
[annotation(s) added]

– CCC

Note up: 741(1) and (2)

Notice of orders of restitution

741.1 If a court makes an order of restitution under section 738 [restitution orders] or 739 [restitution orders], 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) [designating person as public authority to enforce order], 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.
[annotation(s) added]

– CCC

Note up: 741.1

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 [restitution orders] or 739 [restitution orders] has been made in respect of that act or omission.
1992, c. 20, s. 203; 1995, c. 22, s. 6, c. 42, s. 75.
[annotation(s) added]

– CCC

Note up: 741.2

Multiple Offenders Pay

Disposal of penalties when joint offenders

807 Where several persons join in committing the same offence and on conviction each is adjudged to pay an amount to a person aggrieved, no more shall be paid to that person than an amount equal to the value of the property destroyed or injured or the amount of the injury done, together with costs, if any, and the residue of the amount adjudged to be paid shall be applied in the manner in which other penalties imposed by law are directed to be applied.
R.S., c. C-34, s. 742.

– CCC

Note up: 807

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), per Sanderman J

See Also

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