COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhanaswar, 2016 ONCA 229

DATE: 20160324

DOCKET: C59461

Tulloch, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devika Dhanaswar

Appellant

Devika Dhanaswar, in person

Gerald Chan, duty counsel

Greg Skerkowski, for the respondent

Heard: February 9, 2016

Supplementary reasons to the judgment in R. v. Dhanaswar, 2016 ONCA 172, released on March 1, 2016.

ADDENDUM

[1] Following the release of our endorsement on March 1, Crown counsel, supported by duty counsel for the appellant, wrote to the court and drew our attention to the fact that we had not addressed two issues raised by duty counsel and conceded by the Crown.

[2] Those two issues concerned the trial judge’s order for the fine in lieu of forfeiture. That order provided that the appellant and her co-accused were jointly and severally responsible for paying the total amount of the fine. First, duty counsel argued that while a restitution order may be made payable jointly and severally, fine in lieu of forfeiture orders may not. Second, duty counsel asked this court to give effect to the trial Crown’s request for a provision that any amount paid toward the fine be redirected to the victims and count toward the satisfaction of the restitution order.

[3] We agree with the parties on the second issue and, for greater certainty, would amend the order of the trial judge to state: “the restitution order shall take priority over payment of the fine in lieu of forfeiture ordered herein, and the fine in lieu of forfeiture shall be reduced by any amount paid pursuant to the restitution order”.

[4] We decline to exercise our jurisdiction, however, to decide the first issue – whether a fine in lieu of forfeiture may be ordered payable jointly and severally.

[5] While an appellate court may hear and decide new issues not raised at trial, its discretion to do so should not be exercised routinely or lightly: R. v. Guindon, 2015 SCC 41, [2015] 3 S.C.R 3, at para. 22. Before doing so, the court “must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed even though it was not raised at trial”: R. v. K.R., 2009 ONCA 156, 246 O.A.C. 96, at para. 7.

[6] Duty counsel and the Crown urge us to adopt their joint position on the interpretation of a part of the proceeds of crime scheme in the Criminal Code that provides a key tool to combat terrorism and organized crime, and which was implemented as part of Canada’s international obligations: R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392.

[7] In light of those obligations, we note that the question raised before us has been the subject of some controversy outside of Canada for similar schemes, and that the imposition of joint and several liability on fines has been upheld: see e.g. United States v. Caporale, 806 F. (2d) 1487 (11th Cir. 1986), at pp. 1506-10.

[8] Here, this issue was raised for the first time in oral submissions at the appeal hearing. It was not contested at trial. In fact, the defence relied on the joint and several nature of the fine to argue for a longer period of time in which to pay it. Because the Crown is now conceding an issue that was not raised at trial, we do not have the benefit of any arguments whatsoever that explore whether Parliament intended that such orders could be made jointly and severally. Nor have the parties provided us with any evidence of legislative intent.

[9] Instead they have asked us to rely on one authority for our decision – Durno J.’s unreported decision in R. v. Piccinini (5 March 2013), Milton CR-12-077-0000 (Ont. S.C.) – which, though thorough and thoughtful, is not conclusive of the matter.

[10] In this case, we are not prepared to decide this controversial issue in the midst of an adversarial void and evidentiary vacuum.

[11] Accordingly, the order is amended to provide that any amounts paid toward the fine are to be directed towards the victims and count towards satisfaction of the restitution order. The sentence and conviction appeals are otherwise dismissed.

“M. Tulloch J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”