Supreme Court of Canada

Appeal Heard: November 12, 2021 Judgment Rendered: March 31, 2022 Docket: 39162

Between:

Her Majesty The Queen — Appellant

v.

Richard Vallières — Respondent

— and —

Attorney General of Ontario and Association québécoise des avocats et avocates de la défense — Interveners

Official English Translation

Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 68)

Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)

Indexed as: R. v. Vallières

2022 SCC 10

File No.: 39162.

2021: November 12; 2022: March 31.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

on appeal from the court of appeal for quebec

Headnote

Criminal law — Sentencing — Fine in lieu of order for forfeiture of property that is proceeds of crime — Discretion of court — Amount of fine — Whether court has discretion to limit amount of fine in lieu to profit made by offender from their criminal activities — Whether value of property that is proceeds of crime may be apportioned between co‑accused — Criminal Code, R.S.C. 1985, c. C‑46, s. 462.37(3).

In 2016, V was convicted of fraud, trafficking and theft in respect of maple syrup. The stolen maple syrup, which had a market value of over $18,000,000, passed through the hands of several individuals before being resold by V, who collected $10,000,000 in income and paid his various accomplices, making a personal profit of nearly $1,000,000. At the sentencing hearing, the trial judge imposed a fine in lieu of an order for forfeiture of property that was proceeds of crime ("fine in lieu") under s. 462.37(3) of the Criminal Code in the amount of $10,000,000 (the value of the property that was in V's possession or under his control), minus a restitution order of $828,602.43 in Canadian currency. The Quebec Court of Appeal reduced the amount of the fine in lieu to $1,000,000, minus the amount of the restitution order, resulting in a fine in lieu of $171,397.57, on the basis that courts have the discretion to impose a fine that reflects the profit made by an offender from their criminal activities where this penalty meets the objectives of the proceeds of crime scheme. The Court of Appeal also found that imposing a fine of $10,000,000 led to a clear situation of double recovery, given that fines had been imposed on V's accomplices.

Under s. 462.37(3) of the Criminal Code, the trial judge imposed a fine on V in lieu of an order for forfeiture of property that was proceeds of crime ("fine in lieu"). Because the trial judge was of the view that his discretion was limited, he set the amount of the fine at $10,000,000 — the value of the property that was in V's possession or under his control — minus a restitution order of $828,602.43 in Canadian currency, for a total of $9,171,397.57.

Held: The appeal should be allowed.

V must be required to pay a fine equal to the value of the property that was in his possession or under his control, that is, $10,000,000, as the trial judge found. This amount is warranted in light of the evidence. Since a restitution order of $828,602.43 was already imposed, the total of the fine in lieu should be $9,171,397.57. V has 10 years to pay the fine, failing which he will be required to serve an additional term of imprisonment of 3 years.

A fine in lieu differs from the sentence imposed for the commission of a designated offence in that its purpose is to replace the proceeds of crime rather than to punish the offender. It is therefore not subject to the general principles of sentencing, such as proportionality, restraint, and parity.

The use of the word "may" in s. 462.37(3) Cr. C. indicates that Parliament intended courts to have some discretion, but this discretion does not allow them to limit the amount of a fine in lieu to the profit made by an offender from their criminal activities. There are two steps in determining whether a fine in lieu is appropriate and, if so, what its amount should be: (1) the court must determine whether it is appropriate to impose a fine in lieu, and (2) if so, the amount of the fine must be determined. The court's discretion at the first step is broader: the court may impose a fine in lieu only in particular circumstances, namely where forfeiture has become impracticable. At the second step, the court's discretion is more circumscribed. The amount of the fine is necessarily equal to the value of the property that was proceeds of crime — there is no room for the court to limit the fine to the profit made from the criminal activity.

First of all, the wording of s. 462.37(3) Cr. C. is categorical with respect to the amount of the fine: it is equal to the value of the property that is proceeds of crime. The definition of the term "proceeds of crime" is broad enough to encompass not only the profit but the gross value of the criminal activity. Second, a court that limited the scope of a fine to the profit made by an offender from their criminal activities would be disregarding the nature of this order. Lastly, limiting a fine in lieu to the profit made by an offender from their criminal activities undermines and disregards what Parliament intended.

At the step of determining the value of the property, the Crown's burden is only to show that the offender had possession or control of property that is proceeds of crime and to establish the value of that property. Courts must not determine the value of the property on the basis of a hypothetical calculation; rather, they must base their determination on the actual evidence before them.

In situations involving co‑accused who had possession or control of the same property that constitutes proceeds of crime, courts may divide the value of the property between the co‑accused if there is a real risk of double recovery, that is, if the Crown is or has been seeking fines in lieu against several co‑accused with respect to the same property. The offender must raise the issue of apportionment and satisfy the court that it is appropriate. The Crown should, on its own initiative, mitigate the risk of double recovery where possible.

While the offender bears the burden of raising apportionment and establishing its appropriateness, the Crown should, to the extent possible and where the available evidence allows, mitigate the risk of double recovery when seeking fines in lieu against an offender's co‑accused. As an illustration, if the Crown has evidence that an offender had control over a total of $100,000 derived from fraud and then distributed $50,000 to their co‑accused, the Crown should seek only a $50,000 fine in lieu against the co‑accused if it is also seeking a $100,000 fine in lieu against the offender.

Cases Cited

Applied: R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392; considered: R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216; R. v. Devloo and Ong, 2018 MBQB 140; referred to: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762; R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145; R. v. Lawlor, 2021 ONCA 692; R. v. Banayos and Banayos, 2018 MBCA 86.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 "property", 121(1), 123(1), Part XII.2, 462.3(1) "designated offence""proceeds of crime", 462.37(3), 673 "sentence".

Authors Cited

German, Peter M. Proceeds of Crime and Money Laundering: Includes Analysis of Civil Forfeiture and Terrorist Financing Legislation. Toronto: Carswell, 2021 (loose‑leaf updated March 2022, release 1).

Hubbard, Robert W., et al. Money Laundering & Proceeds of Crime. Toronto: Irwin Law, 2004.

APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Bouchard and Beaupré JJ.A.), 2020 QCCA 372, [2020] AZ‑51674438, [2020] J.Q. n^o 1390 (QL), 2020 CarswellQue 1307 (WL), setting aside in part a judgment of the Quebec Superior Court (Pronovost J.), 2017 QCCS 1687. Appeal allowed.

Julien Beauchamp‑Laliberté and Éric Bernier, for the appellant.

Julie Giroux, for the respondent.

Melissa Adams and Vallery Bayly, for the intervener the Attorney General of Ontario.

Jessy Héroux, for the intervener Association québécoise des avocats et avocates de la défense.

Reasons for Judgment

English version of the judgment of the Court delivered by

The Chief Justice —

I. Background

[1] This appeal gives the Court an opportunity to clarify the scope of judicial discretion when determining the amount of a fine to impose on an offender under s. 462.37(3) of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), in lieu of an order for the forfeiture of property that is proceeds of crime ("fine in lieu"). The Crown submits that the Quebec Court of Appeal erred in reducing the amount of this fine from $10,000,000 to $171,397.57. I agree. For the reasons that follow, I would allow the appeal.

[2] The backdrop to this case is a large‑scale theft and fraud scheme targeting maple syrup, a scheme in which the respondent, Richard Vallières, was one of the major players. At trial, Mr. Vallières was convicted of theft, fraud and trafficking in property obtained by crime in connection with maple syrup having a market value of over $18,000,000.

[3] In June 2011, Mr. Vallières met his principal accomplice, Avik Caron. Together, they planned to steal maple syrup from one of the Federation's warehouses and resell it on the black market.

[4] Essentially, Mr. Caron was in charge of the maple syrup theft operations at the Federation's warehouse in the municipality of Saint‑Louis‑de‑Blandford. Mr. Caron and his accomplices surreptitiously extracted hundreds of barrels of maple syrup from the warehouse using trucks, tankers and pumps, and they replaced the syrup with water or an inferior grade syrup. Once extracted, the syrup was transferred to Mr. Vallières's possession, and he took care of reselling it.

[5] The stolen maple syrup therefore passed through the hands of several individuals before it was resold by Mr. Vallières, who collected the income and paid his various accomplices. In this regard, Mr. Vallières acknowledged that he had earned $10,000,000 in income from the resale of stolen maple syrup.

[6] This criminal enterprise, which spanned a period of about a year, led to the largest deployment of resources in the history of the Sûreté du Québec for an investigation concerning stolen tangible goods.

[7] In addition to trafficking in the stolen syrup, Mr. Vallières purchased maple syrup in fraud of the Federation's rights by going directly through Quebec maple syrup producers without being an authorized buyer, and he resold it outside the normal channels, thereby avoiding paying royalties to the Federation.

[8] By Mr. Vallières's own admission, he earned $10,000,000 in income from the resale of the syrup obtained by theft or fraud and made a personal profit of nearly $1,000,000, minus certain transportation and commission fees.

II. Procedural History

A. Quebec Superior Court, 2017 QCCS 1687 (Pronovost J.)

[9] In 2016, a jury found Mr. Vallières guilty of theft, fraud and trafficking in property obtained by crime, offences that all concerned property with a value of more than $5,000. At the sentencing hearing, the Crown sought a fine in lieu, arguing that Mr. Vallières had had $10,000,000 in his possession or under his control.

[10] The trial judge began by considering whether it was appropriate to impose such a fine on Mr. Vallières. Finding that Mr. Vallières had profited from the crimes he had committed with other individuals, the judge found it appropriate to impose a fine in lieu. Mr. Vallières did not challenge this finding before the Court of Appeal or before this Court.

[11] The judge noted that his discretion to determine the amount of the fine in lieu was limited: the fine had to be equal to the value of the property that was proceeds of crime and that had been in Mr. Vallières's possession or under his control, that is, $10,000,000. After deducting the restitution order of $828,602.43 in Canadian currency,[^1] the fine in lieu was set at $9,171,397.57. Mr. Vallières was given 10 years to pay the fine in lieu, failing which he would be required to serve an additional term of imprisonment of 3 years.

B. Quebec Court of Appeal, 2020 QCCA 372 (Hilton, Bouchard and Beaupré JJ.A.)

[12] On appeal, Mr. Vallières essentially argued that the trial judge had exercised his discretion improperly by ordering him to pay a fine in lieu, the terms and amount of which were not challenged on their own.

[13] The Court of Appeal rejected that argument and upheld the trial judge's imposition of a fine in lieu. In its view, the syrup sold by Mr. Vallières during the offence period had been obtained either through theft or fraud and therefore constituted proceeds of crime. It noted that Mr. Vallières was the main organizer and that the trial judge had found that the $10,000,000 in question had passed through his hands.

[14] Despite that finding, and without requesting further arguments from the parties, the Court of Appeal continued its analysis and intervened on its own initiative to reduce the amount of the fine in lieu.

[15] Based on its interpretation of R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216, the Court of Appeal held that courts have the discretion to impose a fine that reflects the profit made by an offender from their criminal activities, provided that this penalty meets the objectives of the proceeds of crime scheme.

[16] The Court of Appeal further noted that the imposition of that fine created a clear situation of double recovery in light of the fines imposed on Mr. Vallières's accomplices, which were also related to the same property.

[17] In the Court of Appeal's view, the $10,000,000 fine in lieu imposed in this case was clearly disproportionate to the objectives of the scheme governing this type of fine. Imposing a fine that reflects the profit made by the offender would achieve the dual objective of deprivation and deterrence.

[18] The Court of Appeal accordingly allowed the appeal on this ground and reduced the fine in lieu to $1,000,000, minus the amount of the restitution order ($828,602.43 in Canadian currency), resulting in a fine in lieu of $171,397.57.

III. Issues

[19] The issues raised by this appeal are as follows:

1. Did the Quebec Court of Appeal err in reducing the amount of the fine in lieu imposed on Mr. Vallières?

2. Did the Court of Appeal err in failing to allow the parties to be heard regarding the change to the amount of the fine in lieu, given that this question had not been raised on appeal?

[20] The analysis of the first issue is sufficient to decide this appeal. I will therefore deal only very briefly with the second issue concerning the Crown's right to be heard on a question that had not been raised on appeal.

IV. Parties' Arguments

[21] The Crown submits that the Court of Appeal could not reduce the amount of the fine in lieu so that it corresponded to the profit made by Mr. Vallières from his criminal activities. According to the Crown, a fine in lieu must be equal to the value of the property that constitutes proceeds of crime and that was in the offender's possession or under the offender's control. Misinterpreting Dieckmann, the Court of Appeal relied on a discretion that courts do not have.

[22] Mr. Vallières argues that the Court of Appeal was justified in intervening because the trial judge had erred in exercising his discretion by stating that he had no choice but to impose a fine in lieu of $10,000,000. According to Mr. Vallières, courts have the discretion to consider the degree of the offender's participation in the criminal activity and their profit when determining the amount of the fine in lieu, as long as the deterrence goal is achieved.

V. Analysis

A. Did the Quebec Court of Appeal Err in Reducing the Amount of the Fine in Lieu Imposed on Mr. Vallières?

[23] Answering this question first requires determining whether courts have the discretion to limit the amount of a fine in lieu to the profit made from a criminal activity where this penalty meets the dual objective of deprivation of the proceeds of crime and deterrence.

(1) Nature of a Fine in Lieu

[24] Before beginning my analysis, I should emphasize the special nature of a fine in lieu as a separate component of sentencing. Although a fine in lieu is technically part of a sentence pursuant to s. 673 Cr. C., it differs from the sentence imposed for the commission of a designated offence in that its purpose is to replace the proceeds of crime rather than to punish the offender (R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 25). It is therefore not subject to the general principles of sentencing, such as proportionality, restraint, and parity (Lavigne, at para. 25).

(2) Discretion to Limit the Amount of a Fine in Lieu to the Profit Made From a Criminal Activity

[25] In order to clearly understand the nature of a fine in lieu, it is important to situate it in the more general context of Part XII.2 of the Criminal Code, entitled "Proceeds of Crime". This terminology captures the intention of Parliament. This part of the Criminal Code is aimed at depriving offenders of the economic advantage of their criminal activity (Hubbard, at p. 35).

[26] The imposition of a fine in lieu may be considered where forfeiture of the property that is proceeds of crime has become impracticable. In such a case, a court may, instead of ordering the forfeiture of property, order the offender to pay a fine equal to the value of the property (Lavigne, at para. 25). This fine is subject to an exception in favour of co‑accused — which I will address below.

[27] First, the wording of s. 462.37(3) Cr. C. is categorical with respect to the amount of the fine. As this Court stated in Lavigne"[t]he words are crystal clear. Parliament has itself determined the amount of the fine in lieu of forfeiture: it is the value of the property that was proceeds of crime" (para. 26). The definition of the term "proceeds of crime" is broad enough to encompass not only the profit but also the gross value of the criminal activity (Lavigne, at paras. 26‑27; R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, at para. 28).

[28] It is true that the term "proceeds of crime" encompasses not only property but also any "benefit" or "advantage" (s. 462.3(1) Cr. C.). The inclusion of these words in the definition of "proceeds of crime" does not necessarily mean that the fine is limited to the profit made by the offender from their criminal activities. A "benefit" or "advantage" refers instead to any advantage or benefit derived from the criminal activity.

[29] The term "property" as defined in the Criminal Code includes "property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time with such property" (s. 2 Cr. C.). This definition is broad enough to cover the situation in this case: Mr. Vallières had $10,000,000 in his possession or under his control at some point.

[30] Second, a court that limited the scope of a fine to the profit made by an offender from their criminal activities would be disregarding the nature of this order. It is only where forfeiture of the property is impracticable that a fine in lieu may be imposed. Its objective is therefore to replace the seized property. A fine limited to the profit would not achieve this objective.

[31] Although this case involves maple syrup, the hierarchy among the various accomplices is not unlike that of a drug ring. By way of analogy, in R. v. Devloo and Ong, 2018 MBQB 140, at paras. 49‑52, the court, referring to Lavigne, stated that a fine in lieu related to fentanyl must be equal to the total value of the drugs involved, not to the profit made by the offenders. There is no reason to treat the theft of maple syrup differently from a drug ring.

[32] In this regard, P. M. German notes that "[t]he arrest of one player resembles 'spin the bottle', with the bottle facing a person who ends up being responsible for the gross value of the drugs, not the street level profits" (p. 10‑52). Of course, the offender may always seek to apportion the amount of the fine in lieu, as I explain in more detail below.

[33] Lastly, limiting a fine in lieu to the profit made by an offender from their criminal activities undermines and disregards what Parliament intended (R. v. Banayos and Banayos, 2018 MBCA 86, at para. 28). Parliament, through the severity of the proceeds of crime provisions, is sending a clear message that "crime does not pay" and is thus attempting to discourage individuals from organizing themselves in criminal enterprises where they could derive income from their activities (Lavigne, at para. 22).

[34] Through the severity of the proceeds of crime provisions, Parliament is sending a clear message that "crime does not pay" and is thus attempting to discourage individuals from organizing themselves in criminal enterprises where they could derive income from their activities. Allowing courts to limit the fine to the profit of the offender would reduce the impact of the deterrent message that Parliament intended to send.

[35] In summary, the discretion conferred on courts by s. 462.37(3) Cr. C. does not allow them to limit the amount of a fine in lieu to the profit made from criminal activity. In accordance with the Lavigne framework, courts must follow a two‑step process.

[36] At this second step, the Crown's burden is only to show that the offender had possession or control of property that is proceeds of crime and to establish the value of that property (Angelis, at para. 31). The court's role is then to determine the value of the property based on the evidence and not on a purely hypothetical calculation.

[37] The determination of the value of the property must be based on the evidence and not on [translation] "a purely hypothetical calculation that does not correspond to reality" (R. v. Grenier, 2017 QCCA 1558, at para. 60).

(3) Discretion to Apportion the Value of Property Between Co‑accused

[38] Having outlined the general principles governing the determination of the amount of a fine in lieu, I now turn to situations involving co‑accused, which raise particular issues. This Court has not yet had occasion to address the question of how courts should exercise their discretion where several co‑accused had possession or control of the same property that constitutes proceeds of crime.

[39] In my opinion, courts may divide the value of property among several co‑accused in order to avoid a risk of double recovery. This risk arises where the Crown seeks to have a fine in lieu imposed on several co‑accused for the same property, since the total amount of the fines would exceed the value of the property that was proceeds of crime.

[40] The onus is on the offender to make the request and to satisfy the court that it is appropriate to apportion the value of the property between co‑accused, since apportionment is an exception to the general rule that the fine must be equal to the value of the property. This is consistent with the principle of Lavigne that courts have limited discretion in determining the amount of a fine in lieu.

[41] This discretion to apportion, the exercise of which is governed by the guiding principle that double recovery should be avoided, is in keeping with the objective of s. 462.37(3) Cr. C. and with the nature of the fine in lieu as a measure aimed at depriving offenders of the economic advantages of their criminal activity.

[42] First of all, apportioning the value of the property between co‑accused is consistent with the dual objective of deprivation of proceeds and deterrence. Each co‑accused is deprived of the fruits of their criminality through the fine in lieu imposed on them, and the sum of all fines corresponds to the value of the property that was proceeds of crime. Deterrence is also preserved, since the overall financial impact on the criminal enterprise remains commensurate with the value of the property at stake.

(a) Principles Guiding the Exercise of the Discretion to Apportion

[43] The exercise of a court's discretion is limited by the circumstances in which an order is made (Lavigne, at para. 27). The conditions under which a court may exercise its discretion to apportion the value of the property in question between co‑accused are as follows.

[44] First, it is not enough for an offender to argue that they transferred the property to a third party in order to be entitled to apportionment. For the offender to raise a risk of double recovery, it is necessary that the Crown be seeking or have sought a fine in lieu against other co‑accused for the same property or part of it at some point.

[45] In this regard, Dieckmann is a unique case. There could be no actual risk of double recovery because the accomplices had died, but apportionment of the total amount of the fraud between the offender and the deceased accomplices was justified given the particular circumstances. The fact that the accomplices were deceased did not preclude apportionment.

[46] Second, the evidence must show that several co‑accused had possession or control of the same property, or part of it, at some point in time (R. v. Lawlor, 2021 ONCA 692, at para. 27 ). Where the property was transferred from one accomplice to another, such that none of them had simultaneous possession or control of the same property, but the total amount of fines sought by the Crown against the co‑accused exceeds the value of the property that changed hands, apportionment is possible.

[47] In R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, the Ontario Court of Appeal, interpreting its own decision in Dieckmann, also stated the following:

Where there are multiple offenders before the court, however, and the property passed through the hands of one offender to another without the first offender retaining the benefit of the full value of the proceeds, an argument can be made for apportioning the total value of the property between the two co-accused in order to avoid double recovery. (para. 64)

[48] I agree with this statement. In principle, an offender's fine may be reduced only in proportion to the amount of the fines imposed on the offender's co‑accused who are sentenced in the same proceeding or in other proceedings where fines have already been imposed.

[49] The apportionment exercise presents special difficulties where an offender's co‑accused are tried in separate proceedings. In such a situation, the court may consider the fines already imposed on the co‑accused in other proceedings and reduce the offender's fine accordingly in order to prevent the total fines from exceeding the value of the property that is proceeds of crime. In such a case, the court must ensure that apportionment does not undermine the objective of depriving offenders of the economic advantages of their criminal activity.

[50] Where the conditions giving rise to a possibility of double recovery are met, the court must apportion the value of the property between the co‑accused in order to prevent this risk from materializing. This apportionment exercise is not an invitation to take into account the relative degree of each offender's participation, since the fine in lieu is not a punitive measure.

(b) Duty Owed by the Crown

[51] While the burden of raising apportionment and establishing its appropriateness rests on the offender, this does not mean that the Crown is relieved of all responsibility in this regard.

[52] To mitigate the risk of double recovery, the Crown should, to the extent possible and on its own initiative, apportion the value of the property that is proceeds of crime between the co‑accused at the time it files its request for a fine in lieu against each of them. This way, the total fines will not exceed the value of the property that was proceeds of crime.

[53] The Crown should discharge this duty in every case, but especially where the co‑accused are tried separately. The Crown has an overview of the various proceedings and can limit up front the amount of the fine in lieu it seeks against each co‑accused.

[54] As an illustration, if the Crown has evidence that an offender had control over a total of $100,000 derived from fraud and then distributed $50,000 to their co‑accused, the Crown should seek only a $50,000 fine in lieu against the co‑accused if it is also seeking a $100,000 fine in lieu against the offender.

[55] Of course, the Crown remains free to forgo seeking a fine in lieu or to limit the amount of the fine as part of a joint submission on the sentence of one of the co‑accused. Where the Crown forgoes seeking a fine in lieu or limits the amount it seeks, the risk of double recovery will be reduced accordingly.

(c) Conclusion

[56] In summary, a fine in lieu must, in principle, be equal to the value of the property of which an offender had possession or control at some point in time. The exception to this principle, where there is a risk of double recovery arising from the imposition of fines on several co‑accused, allows courts to apportion the value of the property between the co‑accused. While the offender must raise apportionment, the Crown should mitigate the risk of double recovery on its own initiative.

(4) Application to the Facts of the Case

[57] In this case, the Court of Appeal reduced the fine imposed on Mr. Vallières on the ground that a court can set a fine that reflects an offender's profit margin, provided that this penalty meets the dual objective of deprivation of the proceeds of crime and deterrence. As I have explained, this interpretation is incorrect.

[58] Dieckmann is not a departure from the principle that the fine must be equal to the value of the property; rather, that decision states that the value of the property may be apportioned between co‑accused. In Dieckmann, the Ontario Court of Appeal reduced the fine to reflect the offender's share of the criminal enterprise, since the accomplices had died and there was therefore no actual risk of double recovery. This is different from limiting the fine to the profit made by the offender.

[59] With regard to the dual objective of deprivation of proceeds and deterrence, Parliament has clearly specified the means chosen to achieve its end: the fine must be equal to the value of the property. It is not within the Court's purview to question Parliament's choice.

[60] Moreover, contrary to what the Court of Appeal stated, Lavigne does not stand for the proposition that a fine in lieu can be limited to the profit made by an offender from their criminal activities. In Lavigne, this Court confirmed that the fine is equal to the value of the property that is proceeds of crime, not to the profit made from it.

[61] The Court of Appeal also erred in finding that Mr. Vallières had never had $10,000,000 in his possession while at the same time stating that the money in question had served as an input that allowed him to make a personal profit of nearly $1,000,000 after paying his expenses. In light of that observation by the Court of Appeal itself, it cannot be said that Mr. Vallières never had $10,000,000 in his possession or under his control.

[62] Furthermore, in this Court and for the first time, Mr. Vallières takes issue with the trial judge's failure to apportion the $10,000,000 between his co‑accused and him. It is sufficient to note that Mr. Vallières raises apportionment for the first time before this Court and has not discharged his burden.

[63] Nor can the Crown be reproached for not discharging its duty in this case. At the time of the trial, the Crown's theory was that Mr. Vallières had paid only his co‑accused Sylvain Bourassa, Marcel Mailhot, Richard Doyon and Avik Caron. In that situation, there was a possibility that a fine imposed on Mr. Vallières could constitute double recovery if the Crown were to seek fines in lieu against those four individuals in the future.

[64] However, in light of the evidence available to the Crown, that possibility of double recovery was non‑existent. Considering, as a guide, that the value of the stolen syrup was over $18,000,000, Mr. Vallières earned $10,000,000 from the resale of that syrup. Even if the Crown sought fines in lieu against Mr. Vallières's co‑accused for the same property in subsequent proceedings, a fine of $10,000,000 against Mr. Vallières would not exceed the total value of the proceeds of crime.

[65] Moreover, even with account taken of all the fines ultimately imposed on Mr. Vallières's co‑accused in connection with the criminal enterprise involving the theft of maple syrup, which together amount to approximately $840,000, the total fines imposed are still less than the value of the property that was proceeds of crime.

[66] In the end, Mr. Vallières did not meet his burden, and he must therefore be required to pay a fine equal to the value of the property that was in his possession or under his control, that is, $10,000,000, as the trial judge found. Since the trial judge also imposed a restitution order of $828,602.43, the fine in lieu must be reduced by that amount.

B. Did the Court of Appeal Err in Failing to Allow the Parties to Be Heard Regarding the Change to the Amount of the Fine in Lieu, Given That This Question Had Not Been Raised on Appeal?

[67] Given my answer to the first question, it is unnecessary to decide the second issue in order to dispose of the appeal. Suffice it to say that the determination of the amount of a fine in lieu is a question of law, and it was therefore open to the Court of Appeal to raise it on its own initiative. That said, I note that, as a general principle, parties should be given an opportunity to be heard on issues raised by the court on its own initiative.

VI. Disposition

[68] For these reasons, the appeal is allowed. The fine imposed on Mr. Vallières is set at $9,171,397.57, that is, $10,000,000 minus the amount of the restitution order, $828,602.43. Mr. Vallières has 10 years to pay the fine, failing which he will be required to serve an additional term of imprisonment of 3 years.

Appeal allowed.

Solicitor for the appellant: Director of Criminal and Penal Prosecutions, Trois‑Rivières.

Solicitors for the respondent: Labelle, Côté, Tabah & Associés, Saint‑Jérôme.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Battista Turcot Israel, Montréal.

[^1]: Because the $606,501.56 was in U.S. currency, it should have been converted to $828,602.43 in Canadian currency based on the conversion rate suggested by the Crown. That error was corrected on appeal.