Whether a Fine May be Imposed in Relation to Seized Funds Returned to Accused for Legal Defence Expenses


By Written on behalf of Campbell Bader LLP

The Supreme Court of Canada recently released a decision on whether a fine instead of forfeiture may be imposed in relation to funds that have been judicially returned for payment of legal expenses for an accused’s defence.

What Happened?

The accused was arrested for possession of cocaine for the purpose of trafficking twice in fourteen months. The police searched his car and two apartments, and seized, among other things, a fake Social Insurance Number identification card, about $47,000 worth of cocaine, and about $42,000 in cash. 

The cash was seized by the Crown as potential proceeds of crime. 

In 2009, before his trial, the accused’s counsel brought an application under s. 462.34 of the Criminal Code (the “Code”) for the return of some of the seized funds to pay for reasonable legal fees associated with the case. A judge granted the application, finding that the accused met the financial need requirement. He order the return of the funds under a number of conditions, including that the money should only be used for legal fees. The judge also set out the hourly rate and maximum court hours that could be billed up to the conclusion of the preliminary inquiry. 

Lower Court Decisions

At his trial, the accused pled guilty and was sentenced to 36 months in custody. While the monies seized were proceeds from his crimes, the judge refused the Crown’s request that the accused pay a fine equal to the amount seized. The sentencing judge declined to impose the discretionary fine, mainly because the money had already been used, the accused did not benefit from it and it was used for his legal representation. The Crown appealed. 

The Court of Appeal for Ontario unanimously held that the sentencing judge’s exercise of discretion in the case was inappropriate. While it recognized that sentencing judges have a statutory discretion to not impose a fine, the exercise of this discretion cannot hinder the achievement of the objectives of the proceeds of crime regime. One of these objectives is that offenders cannot profit from their criminal conduct, and the Court of Appeal considered that the accused profited from his criminal conduct by having access to seized funds to pay for his legal fees. As a result, the Court of Appeal imposed a fine of $41,976, equal to the amount of the seized and returned funds. It further ordered that, in the event that the accused did not pay the fine and did not have a reasonable excuse, he would be sentenced to an additional 12 months of imprisonment over and above the 14 months that remained in his prison sentence. 

The accused appealed to the Supreme Court of Canada.

Supreme Court of Canada Decision

After reviewing the relevant legal principles and legislative purposes of the law, the court concluded:

“The discretion to order a fine must be exercised in a manner consistent with all of Parliament’s objectives of the proceeds of crime regime including, where applicable, the return provision. The purposes of the legal expenses return provision include providing access to counsel and giving meaningful weight to the presumption of innocence. Underlying these two purposes is an intent of Parliament to create a fair procedure for the return of funds for reasonable legal expenses while also allowing for the seizure, return, and forfeiture of proceeds of crime. In most cases, clawing back reasonable legal fees as a fine instead of forfeiture would undermine these purposes. Moreover, the payment of reasonable legal fees is neither the type of benefit at which the provisions are aimed nor the kind of “transfer” to a third party contemplated in the fine instead of forfeiture provision. 

For all of these reasons, generally speaking, a fine instead of forfeiture should not be imposed on funds that have been judicially returned for the payment of reasonable legal expenses. There remains, 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 can give full effect to Parliament’s intended purposes.”

In this case, the court found that the sentencing judge exercised her discretion not to impose a fine instead of forfeiture. It found that the accused did not misrepresent his financial position, misuse the returned funds, or experience any change in circumstances. The court concluded that  the sentencing judge’s exercise of discretion was appropriate and should not have been interfered with. 

As a result, the court allowed the appeal and set aside the Court of Appeal’s variance of the sentencing judge’s order.

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.


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