Court had limited discretion to refuse to order fine in lieu of forfeiture

Criminal Law - Search and seizure - Search and seizure under proceeds of crime legislation

Police found tools typically associated with drug trafficking in accused’s car and apartments and seized 560 grams of cocaine, $41,130.51 CAD, and $651 USD. Accused pleaded guilty to possession of counterfeit mark, two counts of possession of cocaine for purpose of trafficking, and two counts of possession of property obtained by crime. Accused had previously obtained order that seized funds be released to pay his legal fees for defence of charges, and sentencing judge refused to order fine in lieu of forfeiture of seized funds previously paid to counsel. Crown successfully appealed and appeals court found that purpose of forfeiture provisions was to deprive offender of proceeds of his crime and to deter him from committing crimes in future . Where property is no longer available for forfeiture, court had limited discretion under s. 462.37(3) of Criminal Code to refuse to order fine in lieu of forfeiture. Sentence was varied to add fine in lieu of forfeiture in sum of $41,131.39 plus $845, for total of $41,976.39. Accused appealed. Appeal allowed. Application of principles of statutory interpretation leads to conclusion that sentencing judges should not impose fine instead of forfeiture in relation to funds that have been judicially returned for payment of reasonable legal fees. Parliament created specific procedure within Criminal Code’s proceeds of crime that allowed accused persons to seek return of some or all of seized property for certain designated purposes if accused had “no other assets or means available”. By enacting return provision, Parliament not only foresaw possibility that seized funds might be needed to mount defence, but explicitly allowed individuals to spend returned funds for this purpose.

R. v. Rafilovich (2019), 2019 CarswellOnt 18190, 2019 CarswellOnt 18191, 2019 SCC 51, 2019 CSC 51, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellOnt 11968, 2017 ONCA 634, K.M. Weiler J.A., C.W. Hourigan J.A., and G. Pardu J.A. (Ont. C.A.).

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