Canadian Criminal Sentencing/Available Sentences/Restitution

General Principles edit

Sections 738 to 741.2 deal with Restitution to victim of crime.

Restitution is intended to rehabilitate the offender by making him immediately responsible for the loss of the victim. It also gives the victim a speedy means of getting money back.[1]

Restitution can be ordered to require the offender to pay a sum of money to compensate a party for a proven loss. Restitution is ordered as either a term of a probation order or else as a stand alone restitution order.[2] A stand alone restitution order has no time limit for repayment and may be registered as a civil judgement[3] which in turn could be used to garnish wages and seize property.

Whether to grant restitution is considered as part of the "totality" of the punishment.[4] Typically, the offender should have some ability to pay the amount, either at sentencing or in the future.[5] The court must take into consideration the offender's ability to pay.[6] However, where the offence is particularly egregious, such as a breach of trust, a restitution order may be made even where there does not appear to be any likelihood of repayment.[7]

Objectives and factors for the discretionary ordering restitution are as follows:[8]:

  1. An order for compensation should be made with restraint and caution;[9]
  2. The concept of compensation is essential to the sentencing process:
    1. it emphasizes the sanction imposed upon the offender;
    2. it makes the accused responsible for making restitution to the victim;
    3. it prevents the accused from profiting from crime; and
    4. it provides a convenient, rapid and inexpensive means of recovery for the victim;
  3. A sentencing judge should consider;
    1. the purpose of the aggrieved person in invoking s. 725(1);
    2. whether civil proceedings have been initiated and are being pursued; and
    3. the means of the offender.
  4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.
  5. It should not be ordered when the amount is unclear.[10]
  6. A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
  7. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.
  8. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
  9. Any serious contest on legal or factual issues should signal a denial of recourse to an order;
  10. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and
  11. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.

No single factor should be determinative on whether restitution should be ordered.[11]

The purpose of the order is to be part of the sentence, not to compensate for losses.[12]

Under section 380.3(1), when a person is convicted of fraud, the court is specifically required to inquire into whether restitution is being sought from the victim's involved. If the judge decides not to order restitution he must under s. 380.3(5), give reasons for the decision.

  1. R. v. Fitzgibbon, [1990] 1 S.C.R. 1005 [1]
    R. v. Yates, 2002 BCCA 583 [2]
  2. s. 738
  3. s. 741
  4. R. v. Siemens, 1999 CanLII 18651 (MB C.A.)[
  5. R. v. Dashner, (1973) BCCA; R. v. Biegus, 1999 CanLII 3815 (ON C.A.) [3]; R. v. Brown (1999) BCCA; R. v. Fitzgibbon, supra
  6. R. v. Ratt, 2005 SKCA 110; R. v. R. v. DeBay, 2001 NSCA 48 [4]
  7. R. v. Yates 2002 BCCA 583 at paras. 12 and 17
  8. R. v. Devgan 1999 CanLII 2412 (ON C.A.)
    See also: R. v. Zelensky at 111-13
    R. v. Fitzgibbon at 454-55
    London Life Insurance Co. v. Zavitz at 270
    R. v. Scherer, (1984), 16 C.C.C.(3d) 30 (Ont. C.A.) at 37-38
    R. v. Salituro, (1990), 56 C.C.C.(3d) 350 (Ont. C.A.) at 372-73
    R. v. Horne 1996 CanLII 8051 (ON S.C.), (1996), 34 O.R.(3d) 142 (Gen. Div.) At 148-49
    R. v. Carter at 75 - 76.
  9. R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 SCR 940
  10. R. v. Castro, [2010] ONCA 718 at paras. 26 and 43
  11. R v Castro, 2010 ONCA 718 at para. 27
  12. See R. v. Castro, [2010] ONCA 718 at paras. 26 and 43