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SENTENCING - Possession of property obtained by crime over $5,000 - Fines - Forfeiture

Friday, November 08, 2019 @ 1:21 PM  


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Appeal by Rafilovich from a decision of the Ontario Court of Appeal that granted the Prosecution’s application seeking imposition of a fine, rather than forfeiture, in relation to seized funds believed to be the proceeds of crime. Rafilovich was arrested for possession of cocaine for the purpose of trafficking. Police searching his car and apartment found, among other things, about $42,000 in cash, which the Crown seized as potential proceeds of crime. Rafilovich successfully applied for return of the seized funds to pay for his legal defence. Rafilovich pled guilty at trial and, in addition to a sentence of imprisonment, was ordered to forfeit to the Crown his 50 percent interest in an apartment as offence-related property. However, the sentencing judge refused the Crown’s application under s. 462.37(3) of the Criminal Code for a fine instead of forfeiture, equal to the amount of the seized funds returned to Rafilovich to pay for his legal counsel. The Court of Appeal held that the sentencing judge’s exercise of discretion in refusing the imposition of a fine was inappropriate, as it hindered the achievement of the objectives of the proceeds of crime regime. The Court of Appeal imposed a fine of $41,976, equal to the amount of the seized and returned funds, and ordered imprisonment of an additional 12 months, over and above the sentence imposed for the trafficking and related charges, if Rafilovich failed to pay the fine.

HELD: Appeal allowed. A sentencing judge had discretion whether to impose a fine instead of forfeiture under s. 462.37(3) for property proven to be proceeds of crime. Since the Code did not expressly indicate whether judicially returned funds ought to be subject to a fine instead of forfeiture, statutory interpretation was required. A review of the Parliamentary debates during the enactment of the proceeds of crime regime revealed two objectives that underpinned the legal expenses return provision: (1) providing access to counsel; and (2) giving meaningful weight to the presumption of innocence. While Parliament was clearly motivated by the desire to remove the financial incentive from certain crimes, it also wanted to ensure that accused persons would have access to legal representation and that the presumption of innocence would be protected. When an accused person could not access legal counsel, the presumption of innocence suffered. Nor was the importance of the presumption of innocence “spent” once an accused person was found guilty. The criminal justice system did not, and should not, retroactively dilute the presumption of innocence after an accused was found guilty, nor did it attach preconditions or penalties to reliance on the presumption. Imposing retroactive penalties on accused persons who relied on the presumption of innocence could have no effect but to undermine the presumption and the protections it afforded to accused persons. The Court of Appeal over-emphasized the broad objective of the fine instead of forfeiture provision to prevent indirect benefit to the accused and gave inadequate attention to the important objectives in the detailed return process enacted by Parliament. The legal expenses return provision allowed Rafilovich, who had no other assets or means to pay for his defence, an opportunity to access seized funds (which remained his property) under close judicial scrutiny and tight conditions. This “benefit” was not the kind of benefit that the fine instead of forfeiture provision was aimed at preventing. Generally speaking, a fine instead of forfeiture should not be imposed on funds that had been judicially returned for the payment of reasonable legal expenses. There remained, however, discretion to order a fine in cases where the offender did not have a real financial need for the returned funds, or the offender did not use the funds to alleviate that need. In this way, courts could give full effect to Parliament’s intended purposes. In this case, the sentencing judge’s exercise of discretion was appropriate and should not be interfered with.

R. v. Rafilovich, [2019] S.C.J. No. 51, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., November 8, 2019. Digest No. TLD-November42019014-SCC