(House of Commons Debates, 3rd Sess., 28th Parl., Vol. 3, February 5, 1971, at p. 3118.)
R v Wust [2000] 1 SCR 455, 2000 SCC 18
The Appellant’s pre trial custody was not taken into consideration by the Learned Trial Judge upon sentencing. The Appellant was sentenced to six years in custody without any reduction for his pre trial custody. In fact, there was no mention of the pre trial custody that the Appellant served by the Trial Judge or any other party at any time throughout the Appellant’s sentencing hearing.
The Appellant’s pre trial custody time should have been taken into consideration upon sentencing, which would have effectively reduced the custodial portion of the Appellant’s sentence. The Appellant spent two periods of time in pre trial custody before being sentenced on February 1, 2013; amounting to a total of 122 days in custody. The first period of incarceration occurred upon the Appellant’s arrest on January 13, 2010 until his release on a Recognizance of Bail on April 20, 2010; amounting to 98 days of pretrial custody. The second period of pretrial custody occurred with the Appellant was ordered into custody upon the jury’s verdict on October 30, 2012 until he was granted bail on November 22, 2012, amounting to 24 days. The Appellant spent a total of 122 actual days in pretrial custody. Given that the Appellant was charged before the amendments to section 719(3) pursuant the Truth in Sentencing Act came into force on February 22, 2010 his pretrial custody should be considered at a ratio of 2.0 to 1.0. At that rate, the Appellant should be credited with 144 days of pre trial custody (4.5) months. His effective sentence after being afforded credit for pre trial custody should be reduced to 67.5 months (5 years and 7.5 months).
2) The Honourable Trial Judge erred in imposing a fine in lieu of forfeiture for $2,849,459.50 without taking into consideration the personal assets frozen by regulatory authorities that are subject to forfeiture and without taking into consideration the amount of money that the Appellant himself contributed to the Overseas China Fund, which would reduce the amount that the Appellant benefitted from the fraud.
In addition to sentencing the Appellant to a term of imprisonment of six years, the Honourable Mr. Justice O’Mara imposed a fine in lieu of forfeiture on the Appellant in the amount of $2,849,459.50. The Appellant was ordered to pay this fine within five years of his release. If the Appellant defaults on payment of the fine he was ordered to be imprisoned for a term of five years consecutive to any other term of imprisonment.
O’Marra J. set the amount of the fine in lieu of forfeiture at $2,849,459.50 based on the evidence of the Crown’s forensic accountant, Michael de Verteuil. This amount represented money that was transferred from the Overseas Chinese Fund by the Appellant to himself, his wife Hong Xiao, and to the various entities that he controlled; the Weizhen Tang Wealth Club, Weizhen Tang Corporation and Weizhen Tang & Associates.
Section 462.37 of the Criminal Code of Canada contains the provisions relating to the fine in lieu of forfeiture regime. The subsections of section 462.37 that are relevant to this sentence appeal are section 462.37(1), 462.37(2), 462.37(2.01), 462.37(3) and 462.37(4):
Order of forfeiture of property on conviction
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
Marginal note roceeds of crime derived from other offences
(2) Where the evidence does not establish to the satisfaction of the court that the designated offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.
Marginal note:Order of forfeiture — particular circumstances
(2.01) A court imposing sentence on an offender convicted of an offence described in subsection (2.02) shall, on application of the Attorney General and subject to this section and sections 462.4 and 462.41, order that any property of the offender that is identified by the Attorney General in the application be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law if the court is satisfied, on a balance of probabilities, that
(a) within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit; or
(b) the income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all the property of the offender.
Marginal note: Fine instead of forfeiture
(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property
(a) cannot, on the exercise of due diligence, be located;
(b) has been transferred to a third party;
(c) is located outside Canada;
(d) has been substantially diminished in value or rendered worthless; or
(e) has been commingled with other property that cannot be divided without difficulty.
Marginal note: Imprisonment in default of payment of fine
(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall
(a) impose, in default of payment of that fine, a term of imprisonment
(i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,
(ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,
(iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,
(iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,
(v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,
(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or
(vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and
(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.
The Supreme Court of Canada held in Lavigne that the sentencing court has a very limited discretion when imposing a fine under subsection (3). The court has discretion over whether or not to impose the fine, and in determining the value of the property to be forfeited. That limited discretion “must be exercised in light of the evidence.” The court has no discretion over the amount of the fine; it must be equal to the value of the targeted property.
Lavigne, supra at paras. 34-35
This Court held in R. v. Dwyer that “any property of an offender” in subsection (3) requires the sentencing court to be satisfied, on a balance of probabilities, that the targeted property “was originally in the possession or under the control” of the accused, or was at least in the accused’s possession at some point. This prerequisite ensures that the fine is consistent with the objectives of s. 462.37, which are “to deprive offenders of the proceeds of crime and ensure they do not benefit from those proceeds.” This Court further held in Dwyer that the Crown does not discharge its burden simply by proving the offender is the leader or directing mind of the offence. The sentencing judge may not infer that because an offender directed a fraud, he or she necessarily possessed, controlled or benefited from the fruits of that fraud. There must be evidence that the targeted funds or property were in the offender’s actual possession or control.
· R. v. Dwyer, [2013] O.J. No. 277 (C.A.) at paras. 21-23
In Waxman, 2011 ONSC 6207, the court ordered the accused to pay both restitution and a fine in lieu of forfeiture. The accused also received a jail sentence. The accused was convicted of four counts of fraud over. The accused defrauded $17 million through illegitimate corporate transactions. At the sentencing level, the court ordered restitution in the amount of $17,990,741, a fine of $15,514,644 in lieu of forfeiture, and an eight year jail term. The court held that no notice was required from the Crown in seeking the fine, as the Crown was not seeking recovery of any specific, identifiable property. The sentence reflected the fact that the accused had abused a position of trust, with regards to the relevant shareholders. As aggravating factors, the court noted the fact that the accused was motivated by pure greed, and had used employees in the commission of his offences. As mitigating factors, the court noted the mental anguish suffered by the accused and his family during the lengthy delays related to the relevant legal proceedings. The court also noted the accused’s lack of a criminal record, and his service to the community. Although the accused had spent the money obtained through fraud, the court held that he still had an obligation to repay it.
The court stated that claimed inability to pay was not a factor rendering the fine inappropriate as part of the sentence:
In Wu, [2003] 3 S.C.R. 530, the [Supreme] Court reviewed a few principles recognized by the common law including the following: (1) “If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay”, and (2) “The time should be what is reasonable in all the circumstances.” (para. 31) These general principles apply with equal force to a fine instead of forfeiture. While the court that imposes the fine has no discretion to vary the amount of the fine based on ability to pay, the ability to pay may nonetheless be taken into account in determining the time for payment. In addition, under Section 734.7(1)(b) of the Criminal Code, when the time allowed for payment of the fine instead of forfeiture has expired, the court asked to issue a warrant of committal may not do so unless it is satisfied that the offender has, without reasonable excuse, refused to pay the fine. According to Wu, failure to pay because of poverty cannot be equated to refusal to pay.
Accordingly, when ability to pay may not be taken into consideration by the court either in deciding to impose a fine instead of forfeiture or in determining the amount of the fine, it nonetheless comes into play at later stages that are not affected by the specific provisions relating to the proceeds of crime: Lavigne, 2006 SCC 10, at paras. 18, 25, 26, 32, 35, 45, 47 and 48.
In Lavigne, 2006 SCC 10, the court held that, in deciding whether to impose a fine in lieu of forfeiture and fixing the quantity, the court has discretion in determining whether to impose the fine, and must not impose a fine greater than the value of the property relevant to the forfeiture. However, the court has discretion in determining how much the relevant property is worth, given the evidence. The ability of the accused to pay is irrelevant to the determination concerning the fine. Simultaneously, ability to pay can be a factor in determining the time-frame for payment, and non-payment due to poverty cannot be taken to constitute refusal to pay.
In Le, [2006] O.J. No. 2789 (S.C.J.), leave to appeal sentence dismissed 2007 ONCA 3775, the court applied Lavigne in holding that inability to pay is not a relevant factor in determining whether a fine should be ordered in lieu of forfeiture. Significantly, the court held that neither s.12 nor s.7 of the Charter are violated by the rules regarding forfeiture and fines instead of forfeiture stipulated at s.462.36 of the Code. The court also addressed the argument that imposing a fine as part of a sentence with other elements represents an instance of (at para. 34) “multiple recovery” by the state. With regard to this argument, the court held that the argument was invalid because the fine in such a sentence is imposed not with the aim of providing restitution to the state, but so as to appropriately punish the accused. The court stated (at para. 34):
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