R. v. Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005
Claude Douglas Fitzgibbon Appellant
v.
Her Majesty The Queen Respondent
and
The Law Society of Upper Canada Intervener
indexed as: r. v. fitzgibbon
1990: January 23; 1990: May 17.
Present: Dickson C.J. and Lamer, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Compensation order ‑‑ Order made against undischarged bankrupt for repayment of misappropriated funds ‑‑ Compensation order made without consent of bankruptcy court ‑‑ Whether or not consent of bankruptcy court required before compensation order could be made under Criminal Code ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 653 ‑‑ Bankruptcy Act, R.S.C. 1970, c. B‑3, ss. 49(1), 148.
Criminal law ‑‑ Compensation order ‑‑ Lawyer misappropriating funds ‑‑ Law Society Compensation Fund paying victims ‑‑ Whether or not Law Society a "person aggrieved".
Bankruptcy ‑‑ Compensation order made as part of sentence under Criminal Code ‑‑ Order made against undischarged bankrupt for repayment of misappropriated funds ‑‑ Compensation order made without consent of Bankruptcy Court ‑‑ Whether or not consent of bankruptcy court required before compensation order could be made under Criminal Code.
Appellant, a lawyer, misappropriated funds entrusted to him and the Law Society compensated his clients out of its Compensation Fund. The appellant pleaded guilty to three counts of fraud and one count of breach of trust, acknowledged the amounts owing to his clients, and was sentenced to a prison term. As an integral part of his sentence, he was ordered to reimburse the Law Society and to pay a client (Gatien) the amount by which his losses exceeded the maximum allowable claim payable by the Compensation Fund. Appellant was an undischarged bankrupt at the time. Leave of the bankruptcy court was not sought before the sentence was pronounced. The Court of Appeal, apart from a minor variation, dismissed an appeal from the sentence and the compensation order in favour of the Law Society and Gatien.
At issue here were: (1) whether consent had to be obtained from the bankruptcy court, pursuant to s. 49(1) (now s. 69(1)) of the Bankruptcy Act, before a valid compensation order could be made pursuant to s. 653 (now s. 726) of the Criminal Code as part of the sentence pronounced against an undischarged bankrupt; (2) whether the Law Society was a "person aggrieved" within the meaning of s. 653 of the Criminal Code; and (3) whether a compensation order should have been made in favour of Gatien.
Held: The appeal should be dismissed.
A compensation order can be made pursuant to s. 653(1) of the Criminal Code without obtaining the consent of the bankruptcy court. The beneficiaries of the compensation order, however, must obtain the consent of the bankruptcy court when they seek to register it in a Superior Court of a province pursuant to s. 653(2).
In making a compensation order, an offender's means should be taken into account but should not be the controlling factor in every case. Here, the sentencing judge was aware that the appellant was an undischarged bankrupt and nevertheless properly exercised his discretion to make the order. The fraudulent acts of a lawyer directed against his own clients warranted its imposition even though the lawyer's means were minimal at the time of sentencing. The claims of the victims of fraudulent acts should be paramount. The Bankruptcy Act permits the claims of fraud to survive the discharge of a bankrupt: s. 148 provides that a bankrupt is not released from any debt or liability arising out of a fraudulent act committed while acting in a fiduciary capacity. Being an undischarged bankrupt should not allow a person to avoid the imposition of a compensation order as part of sentence.
Section 653 of the Criminal Code maintains and recognizes the distinction between the criminal and the civil aspects of compensation orders. A compensation order is an order made against the person of the offender, imposing upon him or her an obligation to pay the amount ordered. Only when the compensation order is filed with the Superior Court of the province does it become an order enforceable against the person and property of the offender.
Section 49(1) of the Bankruptcy Act provides that no remedy or action may be taken against a bankrupt without leave of the court in bankruptcy and accordingly maintains an orderly and fair disposition of the bankrupt's assets and property. The section does not prohibit the making of a compensation order but it precludes the enforcement of the compensation order and so prevents the granting of the very priorities which the Bankruptcy Act seeks to avoid. If the beneficiaries of the order were to seek to execute the order and attach the property of the bankrupt, pursuant to the provision of s. 653(2), the trustee in bankruptcy would have to be notified and the consent of the bankruptcy court obtained pursuant to s. 49(1) before the execution of the order could proceed.
The Law Society attempted to simplify the task for the defrauded client by making payment on behalf of the dishonest solicitor upon proof of the victim's claim. It should not be penalized for doing so. Section 57(1) of the Law Society Act provides that the Law Society is to be subrogated to the rights of the victim and common law principles and sound policy reasons support subrogation as well.
Gatien should be compensated for the balance of his claim. There was no conceivable basis for claiming that partial payment of compensation by the Law Society precluded any further claims by Gatien.
Cases Cited
Considered: R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940; R. v. Scherer (1984), 1984 CanLII 3594 (ON CA), 16 C.C.C. (3d) 30; In re Lévis Automobiles Inc.: Gingras v. Cour des Sessions de la Paix, 1973 CanLII 1273 (QC CA), [1973] C.A. 670, 12 C.C.C. (2d) 182.
Statutes and Regulations Cited
Bankruptcy Act, R.S.C. 1970, c. B‑3, ss. 40, 49(1), 148.
Criminal Code, R.S.C. 1970, c. C‑34, s. 653(1), (2).
Law Society Act, R.S.O. 1980, c. 233, s. 51(7).
Authors Cited
Canada. Law Reform Commission. Working Paper 5. Restitution and Compensation. Ottawa: Information Canada, 1974.
Duncan, Lewis. Bankruptcy in Canada, 3rd ed. By Lewis Duncan and John D. Honsberger. Toronto: Canadian Legal Authors, 1961.
APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal from a compensation order made by Evans C.J. pursuant to the Criminal Code. Appeal dismissed.
Peter‑Paul E. Du Vernet, for the appellant.
Brian Gover, for the respondent.
Stephen E. Traviss and Heather A. Werry, for the intervener.
//Cory J.//
The judgment of the Court was delivered by
CORY J. -- On the sentencing of an individual who is an undischarged bankrupt, can an order be made by a judge of the criminal court for the restitution of amounts acknowledged to have been defrauded or stolen from victims without giving notice to the trustee in bankruptcy and obtaining the consent of the bankruptcy court? The answer given to the question will resolve this appeal.
Factual Background
The appellant, a lawyer, misappropriated funds entrusted to him. He defrauded and stole money from his clients. In most instances, the appellant assured his clients that he would be placing their money in secure mortgages when in fact he invested their funds in property which had little or no equity. On other occasions, the appellant used his clients' funds, such as the $70,000 entrusted to him by Rudolph Gatien, to make fake "mortgage" payments to other clients.
Disciplinary proceedings were taken against Fitzgibbon, who was permitted to resign his membership in the Law Society of Upper Canada. Claims for compensation were made by his clients to the Law Society. The Law Society authorized payments totalling $359,204.28 out of its Compensation Fund. The sum was paid to 26 claimants, 19 of whom were the victims of the crimes of breach of trust and fraud which Fitzgibbon was convicted of committing. Included in the award of compensation was $25,000 for Rudolph Gatien. Although Gatien had entrusted $70,000 to Fitzgibbon, the Law Society had fixed a limit of $25,000 for each claimant seeking to recover funds advanced to dishonest solicitors prior to the June 1, 1979. Gatien fell within this category. He therefore personally brought a claim against the appellant for the remaining sum of $45,000.
The appellant was charged with three counts of fraud and one count of breach of trust. Fitzgibbon acknowledged the amounts owing to his clients, pleaded guilty to the charges and was sentenced to three and one-half years imprisonment. As an integral part of his sentence he was ordered to pay by way of compensation the sum of $359,204.28 to the Law Society and $45,000 to Rudolph Gatien. The order for compensation was made pursuant to the provisions of s. 653 of the Criminal Code, R.S.C. 1970, c. C-34, as amended (now R.S.C., 1985, c. C-46, s. 725). At the time of his sentencing the appellant was an undischarged bankrupt. The statement of affairs in his bankruptcy showed the debts due to Gatien and his other clients. No proceedings seeking leave of the bankruptcy court pursuant to the provisions of s. 49 of the Bankruptcy Act, R.S.C. 1970, c. B-3 (now R.S.C., 1985, c. B-3, s. 69), were taken before the sentence was pronounced.
Decision of the Court of Appeal
Martin J.A., for a unanimous Court of Appeal, observed that the Law Society had paid compensation from its Compensation Fund to the clients of Fitzgibbon. As a result, pursuant to the provisions of s. 51(7) of the Law Society Act, R.S.O. 1980, c. 233, it was thereby subrogated to the rights of those client claimants. He determined that the Law Society was a "person aggrieved" within the meaning of those words as set out in s. 653 of the Criminal Code. He therefore found that the trial judge was correct in making the compensation order in favour of the Law Society.
Martin J.A. further determined that a compensation order was an integral part of the sentencing process. He decided that it was not an action, execution or other proceeding for the recovery of a claim provable in bankruptcy within the meaning of s. 49(1) of the Bankruptcy Act. Accordingly, he concluded that it was not necessary to seek and obtain the leave of the bankruptcy court before a compensation order could be made in the sentencing process.
Although it is true that a compensation order takes effect as a civil judgment, Martin J.A. held that the actual making of the order itself did not confer a preference upon the Law Society or Gatien. Rather, it operated so as to rank the Law Society and Gatien with the other unsecured creditors of Fitzgibbon in the bankruptcy proceedings. However, he did observe that enforcement of the compensation order by execution might result in creating such a preference. He also noted that s. 148 of the Bankruptcy Act provides that the discharge of a bankrupt does not release him from any debt or liability arising out of a fraudulent act committed by him while acting in a fiduciary capacity. As a result, the order against Fitzgibbon could still be enforced following his discharge from bankruptcy after he had been properly credited with the dividends received from the trustee in bankruptcy.
Martin J.A. noted that five of the claimants against the Law Society Compensation Fund had not been victims of the charges before the court and he therefore deducted their claims totalling $30,313.71 from the total amount awarded to the Law Society under the compensation order. Apart from that variation, he dismissed the appeals from the making of the compensation order in favour of the Law Society and Gatien.
Issues
(1) Must consent be obtained from the bankruptcy court pursuant to s. 49(1) of the Bankruptcy Act before a valid compensation order can be made pursuant to s. 653 of the Criminal Code as part of the sentence pronounced against an undischarged bankrupt?
(2) Is the Law Society a "person aggrieved" within the meaning of s. 653 of the Criminal Code?
(3) Should a compensation order have been made in favour of Rudolph Gatien in the amount of $45,000?
Issue (1)
(1) Must consent be obtained from the bankruptcy court pursuant to s. 49(1) of the Bankruptcy Act before a valid compensation order can be made pursuant to s. 653 of the Criminal Code as part of the sentence pronounced against an undischarged bankrupt?
At the outset, something should be said of the nature of the compensation order and its place in sentencing as an integral and vitally important part of the criminal trial proceedings. A trial judge may, in the exercise of his or her discretion, order that compensation be paid to a victim of the convicted person. Section 653 of the Criminal Code provides:
- (1) A court that convicts an accused of an indictable offence may, upon the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by the applicant as a result of the commission of the offence of which the accused is convicted.
(2) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.
The criteria which a court must consider in determining whether a s. 653 order should be made have been set out in R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940. There Laskin C.J. stated at p. 961:
The Court's power to make a concurrent order for compensation as part of the sentencing process is discretionary. I am of the view that in exercising that discretion the Court should have regard to whether the aggrieved person is invoking s. 653 to emphasize the sanctions against the offender as well as to benefit himself. A relevant consideration would be whether civil proceedings have been taken and, if so, whether they are being pursued. There are other factors that enter into the exercise of the discretion, such as the means of the offender, and whether the criminal court will be involved in a long process of assessment of the loss, although I do not read s. 653 as requiring exact measurement.
Laskin C.J. further observed that a compensation order should only be made when the amount can be readily ascertained, and only when the accused does not have an interest in seeing that civil proceedings are brought against him in order that he might have the benefit of discovery procedures and the production of documents. Obviously, though, neither the production of documents nor the examination for discovery will be of much, if any, significance if the amount owing to the victims is fixed and acknowledged.
Sentencing is always a difficult process, requiring a careful balancing of many factors. The courts must strive to make every sentence imposed fit and proper not only for the crime, but also for the convicted person and the community.
In appropriate cases, compensation orders provide an extremely useful and effective tool in the sentencing procedure. The order can provide flexibility and sensitivity to the ever difficult task of sentencing. It can be an effective means of rehabilitating the accused because this order quickly makes him directly responsible for making restitution to the victim. Indeed it will often be counsel for the accused who will suggest that a compensation order be made. The order also benefits the victim by providing a speedy and inexpensive manner of recovering the debt. It requires no more of the victim than a request for the order. Society as a whole benefits from the order since its imposition may reduce the term of imprisonment and provides for the reintegration of the convicted person as a useful and responsible member of the community at the earliest possible date. The practical efficacy and immediacy of the order will help to preserve the confidence of the community in the legal system.
This concept of compensation and restitution has long been considered to be a fundamentally important aspect of sentencing. The Law Reform Commission of Canada, in Working Paper 5, Restitution and Compensation, October 1974, noted (at p. 7, as quoted in Zelensky at p. 952) that:
To the extent that restitution works towards self-correction, and prevents or at least discourages the offender's committal to a life of crime, the community enjoys a measure of protection, security and savings. Depriving offenders of the fruits of their crimes or ensuring that offenders assist in compensating victims for their losses should assist in discouraging criminal activity.
In the present case the appellant argued that the order should not have been made as he had an interest in having the civil proceedings maintained against him. I cannot accept this contention. The appellant acknowledged the correctness of the amounts claimed to be owing to both the Law Society and to Rudolph Gatien. No valid basis was advanced for requiring that these claims be litigated in civil actions. The argument is specious. The principle applicable in this situation was aptly stated by Martin J.A. in R. v. Scherer (1984), 1984 CanLII 3594 (ON CA), 16 C.C.C. (3d) 30, at p. 38:
In my view, where the amount lost by the victims of the appellant's criminal conduct is admitted it would not be sensible to require them to incur the additional expense of undertaking civil proceedings to establish their loss, nor do I believe that it would assist in the appellant's rehabilitation to permit him to put his victims to this additional trouble and expense.
On the facts of the present case, such an order was appropriate. Fitzgibbon acknowledged that he had defrauded his clients of the amount agreed to at his trial. The Law Society had compensated the appellant's defrauded clients and was subrogated to their rights against him. Rudolph Gatien was also entitled to the balance defrauded from him for which he had not been compensated by the Law Society. The order was thus appropriate to allow compensation for the Law Society and Gatien.
In summary, it can be seen that compensation orders are an extremely useful part of the sentencing procedure. They are often used in sentencing young persons or first-time offenders who have not committed crimes of violence. Their value cannot be over-emphasized. Much of the efficacy of these orders is the immediacy of their effect. If it is possible, they deserve to be available for consideration in the sentencing of all offenders. It remains only to be determined whether the order could be validly made when the appellant was an undischarged bankrupt at the time of sentencing.
The fact that the appellant is an undischarged bankrupt raises two issues. First, it was recognized in Zelensky that the means of the accused person should be taken into account when a court is considering making a compensation order. However, in the case at bar, the sentencing judge was aware that the appellant was an undischarged bankrupt at the time of the sentencing and nevertheless properly exercised his discretion to make the order. In the Court of Appeal, Martin J.A. carefully considered the words of Laskin C.J. in Zelensky. He concluded that the means of the offender should not in every case be the controlling factor. I agree with that conclusion of Martin J.A.
The appellant was a lawyer who defrauded his clients. He used his position to defraud the very persons who had every reason to trust and rely upon him. The fraudulent acts of a lawyer directed against his own clients warranted the imposition of a compensation order even though the lawyer's means at the time of sentencing were minimal. The claims of the victims of fraudulent acts should be paramount. This seems to be recognized by s. 148 (now s. 178) of the Bankruptcy Act. That section provides that the discharge of a bankrupt does not release him from any debt or liability arising out of a fraudulent act committed by him while acting in a fiduciary capacity. The Bankruptcy Act itself, therefore, permits claims of fraud to survive the discharge of a bankrupt, and the fact that Fitzgibbon is an undischarged bankrupt should not allow him to avoid the imposition of this compensation order as part of his sentence.
Secondly, and more importantly, it must be considered whether the compensation order could be validly made in light of the provisions of s. 49(1) of the Bankruptcy Act. That section provides:
- (1) Upon the filing of a proposal made by an insolvent person or upon the bankruptcy of any debtor, no creditor with a claim provable in bankruptcy shall have any remedy against the debtor or his property or shall commence or continue any action, execution or other proceedings for the recovery of a claim provable in bankruptcy until the trustee has been discharged or until the proposal has been refused, unless with the leave of the court and on such terms as the court may impose.
It is to be observed that the section prohibits the granting of any "remedy against" or "recovery of" any claim against the debtor or his property without leave of the court in bankruptcy. The aim of the section is to provide a means of maintaining control over the distribution of the assets and property of the bankrupt. In doing so, it reflects one of the primary purposes of the Bankruptcy Act, namely to provide for the orderly and fair distribution of the bankrupt's property among his or her creditors on a pari passu basis. See Duncan and Honsberger, Bankruptcy in Canada (3rd ed. 1961), at p. 4. The object of the section is to avoid a multiplicity of proceedings and to prevent any single unsecured creditor from obtaining a priority over any other unsecured creditors by bringing an action and executing a judgment against the debtor. This is accomplished by providing that no remedy or action may be taken against a bankrupt without leave of the court in bankruptcy, and then only upon such terms as that court may impose.
In contrast, a compensation order is an order made against the person of the offender, imposing upon him or her an obligation to pay the amount ordered. It is only when the compensation order is filed with the Superior Court of the province that it becomes an order enforceable against the person and property of the offender. There is a fundamentally important distinction between the original compensation order, which is an order against the person by which the court recognizes an acknowledged indebtedness, and the subsequent filing in the Superior Court which can convert that personal order into an order against the property of the accused.
Section 49(1) of the Bankruptcy Act would preclude the enforcement of the latter. This is because such an enforcement would result in the granting of the very priorities which the Bankruptcy Act seeks to avoid. However, the original compensation order made at the time of sentencing is an order against the offender personally recognizing an acknowledged indebtedness and is not immediately enforceable. Until the order is filed with the Superior Court, it simply imposes a future obligation upon the offender to pay. It is neither a remedy nor an order for recovery against the property of the bankrupt offender within the meaning of s. 49(1). Thus s. 49(1) does not prohibit the making of a compensation order.
It is not without significance that s. 653 of the Criminal Code itself maintains the distinction between the criminal and the civil aspects of compensation orders. Subsection 653(1) allows for the imposition of such an order as part of the sentence in the criminal courts. Subsection 653(2) provides for the enforcement of the payment of that order in the civil courts. These two separate subsections seem to be designed to recognize the essential distinction between the civil and criminal aspects of these orders.
Furthermore, exempting s. 653(1) orders from the purview of s. 49(1) of the Bankruptcy Act will not undermine the integrity of that Act. The net effect of the compensation order is simply to prove that the victims have a valid claim as unsecured creditors in the bankrupt's estate. It does not give the victims priority over the other unsecured creditors. Priority would only arise if the beneficiaries of the order sought to execute the order and attach the property of the bankrupt, pursuant to the provision of s. 653(2). At that point, the trustee in bankruptcy would have to be notified and the consent of the bankruptcy court obtained pursuant to s. 49(1) before the execution of the order could proceed. The integrity of the Bankruptcy Act is therefore maintained.
The distinction between the original compensation order which affects an undischarged bankrupt only in a personal manner, and the filed order which affects his property, might be said to be a narrow and technical one. None the less, it is worth making such a fine distinction in order to retain the integrity of the sentencing process, to preserve the rehabilitative and deterrent effect of properly made compensation orders, and to maintain the distinction between civil and criminal procedures. To require the leave of the bankruptcy courts before such an order could be made would severely limit the role of the sentencing judge which is so vital to the administration of criminal law.
It is worthy of note that the importance of maintaining the distinction between civil and criminal procedures was affirmed by the Quebec Court of Appeal in In re Lévis Automobiles Inc.: Gingras v. Cour des Sessions de la Paix, 1973 CanLII 1273 (QC CA), [1973] C.A. 670, 12 C.C.C. (2d) 182. There Crête J.A. (as he then was) observed that the provisions of s. 40 of the Bankruptcy Act, R.S.C. 1952, c. 14 (later R.S.C. 1970, c. B-3, s. 49, and now R.S.C., 1985, c. B-3, s. 69) could not apply to penal or criminal proceedings involving the imposition of a fine or imprisonment. In that same case, it was noted by Turgeon J.A. that as a matter of principle criminal courts should not be subjected to the control of civil courts. This decision supports the determinations I have reached.
I would conclude that the compensation order can be made pursuant to s. 653(1) without obtaining the consent of the bankruptcy court. It is not until such time as the beneficiaries of the compensation order seek to proceed pursuant to s. 653(2) and register the order with the Superior Court of a province that they must first obtain the consent of the bankruptcy court.
Issues (2) and (3)
(2) Is the Law Society a "person aggrieved" within the meaning of s. 653 of the Criminal Code?
(3) Should a compensation order have been made in favour of Rudolph Gatien in the amount of $45,000?
These issues can be considered together.
The appellant submitted that the Law Society could not be the recipient of compensation under s. 653 of the Criminal Code because it was not a "person aggrieved" within the meaning of that section. It was contended that only the individual clients who were defrauded by the appellant could invoke a claim under this section.
I cannot accept this contention. At the outset, it should be observed that one of the goals and aims of s. 653 was to provide a convenient, rapid and inexpensive means of recovery for the victim. Why should a victim of crime in a situation where the amount involved is readily ascertained and acknowledged by the accused be forced to undertake the often slow, tedious and expensive civil proceedings against the very person who has stolen from or defrauded the victim? The Law Society has attempted to simplify the task for the defrauded client and to provide a sure and speedy means of repayment. Upon proof of the victim's claim, the Law Society makes payment on behalf of the dishonest solicitor. The policy of the Law Society flows from sound and responsible provisions found in the Law Society Act. By these provisions all lawyers recognize and accept responsibility for the acts of their dishonest colleagues. The Law Society should not be penalized for compensating the defrauded clients. Based on common law principles and for sound policy reasons, the Law Society should be subrogated to the rights of the defrauded clients which it has compensated.
As well, the Law Society Act itself provides that the Law Society is to be subrogated to the rights of the victim in these words:
- . . .
(7) If a grant is made under this section, the Society is subrogated to the amount of the grant to any rights or remedies to which the person receiving the grant was entitled on account of the loss in respect of which the grant was made against the dishonest member or any other person, or, in the event of the death or insolvency or other disability of such member or other person, against his personal representative or other person administering his estate.
For these reasons, the Law Society is properly entitled to be subrogated to the rights of the victim and was entitled to be named as the beneficiary of the compensation order.
So too, should Gatien be compensated for the balance of his claim. He was defrauded of $70,000 by the appellant. He recovered only $25,000 from the Law Society. There is no conceivable basis for claiming that partial payment of compensation by the Law Society precludes any further claims by Gatien. He should be awarded his claim for $45,000.
Disposition
In the result, I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Peter‑Paul E. Du Vernet, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
Solicitor for the intervener: The Law Society of Upper Canada, Toronto.
