Julie Giroux

The Crown appealed a Quebec Court of Appeal decision that reduced a fine in lieu of forfeiture under s. 462.37(3) of the Criminal Code from $10,000,000 to approximately $171,397.57, on the basis that courts have discretion to limit the fine to the offender's profit from criminal activity.

The Supreme Court held that courts have no such discretion: the fine in lieu must equal the full value of the property that constituted proceeds of crime in the offender's possession or under his control.

The Court clarified that while apportionment between co-accused is permissible to avoid double recovery, the offender bears the burden of establishing its appropriateness, and the Crown has a duty to mitigate double recovery risk on its own initiative where possible.

On the facts, the respondent failed to meet his burden and the $10,000,000 fine (less the restitution order of $828,602.43) was restored.

In a criminal appeal concerning party liability under s. 21(1)(b) of the Criminal Code, the Court declined to resolve whether omission without a legal duty can ground liability for aiding.

Applying the trial findings, the majority held the evidence did not prove beyond the required threshold that the respondent acted or failed to act for the purpose of aiding the offences charged.

The appellate challenge to the acquittal was therefore rejected.

A dissent would have allowed the appeal for the reasons in the intermediate appellate dissent.