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SENTENCING - Particular sanctions - Fines - Forfeiture - Sentencing considerations - Procedure - Jurisdiction to impose sentence

Tuesday, September 05, 2017 @ 9:05 AM  

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Appeal by the Crown from the sentencing judge’s refusal to impose a fine in lieu of forfeiture on Rafilovich. Appeal by Rafilovich from an order for forfeiture of offence-related property. Rafilovich pleaded guilty to two counts of possession of cocaine for the purpose of trafficking and two counts of possession of property obtained by crime. Items seized from Rafilovich included 560 grams of cocaine, $41,131 in Canadian dollars and $651 in American funds. Four years prior to his sentencing, Rafilovich obtained an order pursuant to s. 462.34(4)(c)(ii) of the Criminal Code releasing the seized funds to pay for his defence. The sentencing judge refused the Crown’s request for a fine in lieu of forfeiture of the seized funds previously paid to counsel, noting that there were no other funds available for Rafilovich’s defence and no evidence that he concealed or squandered other assets. She was concerned that, upon default in paying the fine, Rafilovich would end up imprisoned for an additional 12 to 18 months, resulting in a longer term of imprisonment than a similarly situated offender who had funds for his or her legal expenses or who qualified for legal aid. The sentencing judge did order the forfeiture of Rafilovich’s entire $100,000 interest in the value of a condominium, title to which was shared with his mother, from which Rafilovich had trafficked drugs. Rafilovich argued that forfeiture of his interest in the condominium should have been limited to $55,000.

HELD: Appeal by the Crown allowed; appeal by Rafilovich dismissed. A fine in lieu of forfeiture was added in the sum of $41,976, in default of which Rafilovich would serve 12 months’ imprisonment. The judge erred in refusing to order a fine in lieu of forfeiture. The fact that Rafilovich spent the money on legal fees was no bar to a fine to replace the fruits of his crime. The sentencing judge also erred in considering the global sentence that would result if Rafilovich defaulted on his fine. The purpose of the fine was to extract the profits of criminal activity. It was not part of the sentencing provisions aimed at the particular offence. The parties had agreed to the valuation of Rafilovich’s interest in the condominium and there was no reason to interfere with the figure set by the judge. The judge was not obliged to conduct a detailed accounting of income and expenses related to the property, or fluctuations in its value, where no evidence on these matters had been presented.

R. v. Rafilovich, [2017] O.J. No. 4064, Ontario Court of Appeal, K.M. Weiler, C.W. Hourigan and G.I. Pardu JJ.A., August 3, 2017. Digest No. TLD-Sept42017002