Forfeiture

• Author: Jonathan Shime/Ian Smith/Grace Hession David
• Pages: 157-178

157

Forfeiture

8

I. Introduction ............................................. 158

II. Fine in Lieu of Forfeiture ................................... 159

A. Limited Judicial Discretion ............................ 160

B. Time to Pay ........................................ 165

C. Quantum of Fine in Lieu ............................. 168

D. The Relationship Between an Order of Restitution and an

Order for a Fine in Lieu of Forfeiture .................... 171

E. The Enforcement Process ............................. 172

F. Constitutionality of the Fine in Lieu Provisions ............ 175

© [2021] Emond Montgomery Publications. All Rights Reserved.

158 Prosecuting and Defending Fraud Cases

I. Introduction

In March 2005, the Ontario Crown Policy Manual1 was amended to include the follow-

ing directive to Crown counsel with respect to the proceeds of crime:

Principles

The Attorney General supports the use of Proceeds of Crime legislation. It is important

to remove illicitly obtained profits from criminals and to preserve property obtained by

crime for forfeiture.

In order to give proper eect to this important law enforcement tool, Crown counsel

must adhere to the practice and procedure set out in the legislation, when seizing or

restraining property. Crown counsel should also be mindful of the following:

• At sentencing, restitution, compensation and restoration take priority over for-

feiture. Crown counsel should ensure that any restrained property is used to satisfy

any restitution orders to victims of crime before a forfeiture order is sought or made.

In successful fraud prosecutions, the Crown may very well ask the court for a

restitution order on behalf of the complainants. A justice may impose a restitution

order even if there are no funds left from the fraud and the chances of the restitution

order’s being honoured are slim. While a restitution order is tantamount to a civil

judgment, and while it survives the bankruptcy of the party to whom it attaches,2

there is no method of enforcement of the order itself. The Crown is then left with a

real dilemma—that is, how to ensure that crime does not pay. This seems especially

unjust and contrary to the principles of the criminal justice system in a fact situation

where a great deal of money has just “vanished” without explanation. In a discussion

of the forfeiture sections of the Criminal Code, DohertyJA summarized the guiding

principles. Even though he was speaking with respect to the massive profits that can

come from tracking in controlled substances, his words are equally applicable to the

massive profits that can come from fraudulent schemes:

The purpose of Part XII.2 [“Proceeds of Crime”] is clear. It is intended to give eect

to the age old adage that crime does not pay. It is now recognized that some crime is

big business, and that massive profits, both direct and indirect, can be made from crim-

inal activity. Part XII.2 is a response to that realization and provides a comprehensive

scheme whereby those direct and indirect profits may be located, seized and eventually

forfeited to the Crown.3

This chapter will outline the principles of forfeiture as they commonly arise in a

fraud prosecution. It should be noted, however, that it is beyond the scope of this book

to discuss the principles of forfeiture when there are assets that have been placed in

1 Ontario, Ministry of the Attorney General, Crown Policy Manual (2005), online: <https://

www.ontario.ca/document/crown-prosecution-manual/>.

2 R v Biegus, 1999 CanLII 3815, 141 CCC (3d) 245 at para 15 (Ont CA).

3 Wilson v R, 1993 CanLII 8665, 15 OR (3d) 645 (CA).

© [2021] Emond Montgomery Publications. All Rights Reserved.