R. v. A.S., 2010 ONCA 441

CITATION: R. v. A.S., 2010 ONCA 441

DATE: 20100616

DOCKET: C50054

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

A.S.

Respondent

Stéphane Marinier, for the appellant

Patrice F. Band, for the respondent

Heard: May 31, 2010

On appeal from the sentence imposed on January 26, 2009 by Justice Julianne Parfett of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The respondent was convicted of trafficking in 7.0 kilograms of methamphetamine and 2.2 kilograms of marihuana. He was sentenced to six years less credit of seven months for pre-sentence custody and house arrest. The issue on this Crown appeal is whether the sentence is manifestly unfit in view of the fact that methamphetamine is now a Schedule I drug. In addition, the Crown appeals the refusal of the sentencing judge to impose a fine in lieu of forfeiture pursuant to ss. 462.37(1) and (3) of the Criminal Code, on the basis that the respondent had no means to pay a fine.

[2] The sentencing judge noted that, although the respondent had a lengthy record, the longest sentence he had previously served was equivalent to seven months, with credit given on a two-for-one basis for two months of pre-trial custody. While the appellant had trafficked in marihuana, it does not appear he had trafficked in methamphetamine prior to the undercover officer’s request to supply him with the drug. The sentencing judge also took into account the fact that the appellant was a methamphetamine addict throughout the fourteen-month period over which the transactions took place.

[3] While the greater quantity of methamphetamine was trafficked after the change in the Schedule making the trafficking in methamphetamine a more serious offence, the chain of offences was initiated by the undercover officer before that change.

[4] At the respondent’s sentencing hearing, the trial judge was alerted by the respondent himself to certain acts of cooperation by him with the police and, while she did not mention this fact, it may have been a factor in the sentence imposed.

[5] In the particular circumstances of this case, while the sentence is low, we would not interfere. Given our conclusion, it is unnecessary for us to deal with the respondent’s application to admit fresh evidence concerning his cooperation with the police subsequent to being sentenced.

[6] We turn now to the issue of whether the trial judge erred in not imposing a fine in lieu of forfeiture of the buy money which no longer existed. The trial judge’s decision was made on the basis of the respondent’s inability to pay.

[7] The relevant sections provide as follows:

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.

462.37(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.

[8] The respondent’s counsel concedes that, in R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, the Supreme Court held that ability to pay is not a factor to be considered in determining the fine under s. 462.37, but is a consideration in determining the time to be given to the offender to pay the fine and in determining whether a warrant should issue for non-payment.

[9] The respondent submits, however, that whether or not to order a fine in lieu of forfeiture is a matter for the sentencing court’s discretion. The respondent no longer has the buy money of $37,100 that was given to him by the undercover officer. He submits that the court should conclude that the money went to the supplier who was higher up in the chain and to feed his drug habit. Accordingly, the respondent submits that he cannot be said to have benefitted from the major portion of the funds given to him and that, although the sentencing judge erred in considering ability to pay, it was within her discretion not to order payment of a fine. The respondent suggests in effect that the word “may” in s. 462.37(3) gives a sentencing judge a broad discretion whether to impose a fine in lieu of forfeiture, in keeping with the normal principles of sentencing.

[10] In Lavigne, the Supreme Court clarified that the discretion given by the use of the word “may” is discretion with respect to whether or not it is appropriate to impose a fine instead of forfeiture, rather than ordering forfeiture itself. The discretion to impose a fine can be exercised only where the court cannot order forfeiture or where forfeiture is not practicable. 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. See Lavigne at paras. 22-27.

[11] The Supreme Court went on to clarify that the section does not require that the sentencing judge must impose a fine in lieu of forfeiture in every situation where an order of forfeiture is not possible [see para. 28]. “May” is not equivalent to “shall”. The Court explained that there may be circumstances in which the objectives of the provisions do not call for a fine to be imposed at all. As Deschamps J. observed at para. 35: “The court’s discretion applies both to the decision whether or not to impose a fine and to the determination of the value of the property.” An example of this would be “if the offender did not profit from the crime and if it was an isolated crime committed by an offender acting alone” [see para. 28]. In that case, “none of the objectives would be furthered or frustrated by a decision not to impose a fine instead of forfeiture” [see para. 28]. The Court found that “the word ‘may’ allows for an exercise of discretion that is consistent with the spirit of the whole of the provisions in question” [see para. 28].

[12] In contrast, the Court explained that the mere fact that property has been used cannot justify exercising the discretion not to impose a fine: Lavigne, at para 32. Thus, in the present case, the fact that the money had been spent did not foreclose the possibility of a fine.

[13] In Lavigne the sentencing judge was convinced that the accused had received $150,000 in proceeds of crime. However, there was a lack of evidence that the accused still possessed that amount. In lieu of forfeiture, the sentencing judge fined the accused $20,000. The Quebec Court of Appeal dismissed the appeal on the basis that the sentencing judge had discretion whether to order the fine. The Supreme Court of Canada allowed the appeal, set aside the orders of the Court of Appeal and the Court of Quebec as regards the fine, and sentenced the offender to pay a fine of $150,000 instead. It then remanded the case to the Court of Quebec to determine the time limit for payment and the term of imprisonment that would apply in the event of a failure to pay the fine.

[14] Having regard to Lavigne, we are satisfied that the sentencing judge erred in not imposing a fine in lieu of forfeiture. The respondent received $37,100 in drug buy money. He did not act alone and his actions extended over a considerable period of time. Receiving the money was a “benefit” in keeping with the purpose of the provisions. What the respondent then chose to do with the money (i.e. pay his supplier, purchase drugs, etc.) need not be the subject of inquiry by the sentencing judge as the Supreme Court’s decision in Lavigne illustrates.[^1]

[15] For these reasons, while leave to appeal sentence is granted, we dismiss the appeal as to the length of imprisonment. In regard to the issue of whether the sentencing judge should have ordered the respondent to pay a fine instead of forfeiture, we hereby allow the appeal and sentence the respondent to pay a fine of $37,100. The case is remanded to the sentencing court to determine the time limit for payment and, in the event of a failure to pay the fine, the term of imprisonment in accordance with the provisions of s. 462.37(4).

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”

[^1]: We would also note that our conclusion accords with the decision of Doherty J.A. of this court in Wilson et al. v. The Queen (1993), 1993 8665 (ON CA), 86 C.C.C. (3d) 464 (Ont. C.A.), a case in which the assignment of a portion of proceeds of crime to the accused’s lawyers for legal fees did not preclude the amount assigned from being the subject of a fine.