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R. v. Topp, 2011 SCC 43

               Criminal law — Sentencing — Fines — Offender’s ability to pay — Burden of proof — Whether offender required to prove inability to pay a fine corresponding to funds fraudulently obtained — Whether trial judge erred in declining to impose a fine — Whether trial judge was bound to impose a fine in light of accused’s failure to explain what happened to misappropriated funds — Criminal Code, R.S.C. 1985, c. C-46, s. 734(2).

                   The accused used his brokerage business to defraud Canada Customs of $4.7 million.  He was convicted of 16 counts of fraud and attempted fraud under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).  The Crown sought a $4.7 million fine in addition to imprisonment.  At the sentencing hearing, the accused’s counsel asserted that the accused was unable to pay a fine, but adduced little evidence to support the assertion.  No explanation was given of where the $4.7 million had gone and the Crown was unable to trace or locate the funds. ...


                   The legislative purpose behind s. 734(2) of the Criminal Code is to prevent offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment.  

A court may impose a fine only if satisfied, on a balance of probabilities, that the offender has the means to pay the fine (or to discharge it under s. 736, which is not possible in this case).  As a practical matter, s. 734(2) imposes a burden on the party seeking a fine to satisfy the court that the offender is able to pay.  The party opposing the fine does not assume a formal burden of proof and remains free to argue that the evidence before the court should not satisfy the court that the offender is able to pay.

                   In the absence of a reasonable explanation to the contrary, past receipt of illegally-obtained funds will often support an inference that the offender still possesses sufficient funds to pay a fine.  However, a trial judge is not bound as a matter of law to reach that conclusion.  The weight reasonably attributable to the past receipt of funds will vary according to at least two factors: the amount of funds acquired and the length of time that has passed between the acquisition of the funds and the imposition of sentence.  Both the text of s. 734(2) and the legislative intention to avoid the incarceration of offenders who are truly unable to pay their fines support the conclusion that proof of past receipt of illegally obtained-funds is not always conclusive of a present ability to pay.

                   The Crown is not required to identify or locate the specific assets that the offender can use to pay the fine and instead may rely on indirect evidence to prove an offender’s ability to pay.  On the other hand, the text of s. 734(2) explicitly requires an affirmative finding that the offender is able to pay a fine, instead of requiring the party opposing the fine to prove that the offender is unable to pay the fine.


Jim O'Neil, LL.B.

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