R v Rafilovich (2019) 3 SCR 838

In making a determination on the issues above, the court observed that the statutory discretion to impose a fine instead of forfeiture under s. 462.37(3) of the Criminal Code must be exercised in accordance with the purposes of the proceeds of crime regime. This regime as a whole sought to ensure that crime does not pay or benefit the offender; however, by enacting the legal expenses return provision at s. 462.34(4) (c) (ii) of the Criminal Code, Parliament not only foresaw the possibility that seized funds may be needed to mount a defense, but explicitly allowed individuals to spend returned funds for this purpose. The return provision pursues two secondary purposes: providing access to counsel and giving meaningful weight to the presumption of innocence. These secondary objectives ensure fairness to the accused in criminal prosecutions. Clawing back reasonable legal expenses as a fine instead of forfeiture would, in most cases, undermine these purposes. If it turns out that the offender did not have a real financial need or the funds were not used to alleviate that need, it would be appropriate to impose a fine instead of forfeiture, as this would align with Parliament’s intent. The Court further stated that the return provision is necessary in the following circumstances: 1) where the accused has “no other assets or means” and, therefore, access to the funds is truly necessary; and (2) where “no other person appears to be the lawful owner of or lawfully entitled to possession of the property” (s. 462.34(4)). The return provision is thus intended to provide a safety net for those accused persons who are in financial need. The Court while relying on the case of R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 24-25 stated that access to effective legal representation is anchored in the presumption of innocence, the principle of fair criminal prosecutions, and the principles of fundamental justice. It suffices to say that Parliament crafted its proceeds of crime regime to establish fair safeguards for the accused, notably the opportunity to pay legal expenses out of seized or restrained property when necessary. The Court agreed with Mr. Rafilovich in finding that the judge’s exercise of discretion to impose a fine instead of forfeiture should be “consistent with the spirit” and “compatible with the objectives” of the scheme as a whole. Finally, the court held that, the payment of reasonable legal fees is neither the type of benefit at which the provisions are aimed nor the kind of “transfer” to a third party contemplated in the fine instead of forfeiture provision. Therefore, the sentencing judge’s exercise of discretion was appropriate and should not be interfered with. The appeal was allowed. The proceeds of crime and forfeiture regime was intended “to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future”. Thus, the seizure provisions allow the state to take control of property believed to be proceeds of crime before trial and sentencing, to ensure it remains available for possible forfeiture. Likewise, the fine instead of forfeiture provision ensures that, if accused persons were able to keep proceeds of crime from the state throughout the criminal proceedings, they must in the end pay a fine equivalent to the value of the property that is not available to be forfeited. Criminal justice is meant to provide a fair process to get a just result. It isn’t about getting maximum punishment at any cost.