Crown has burden to show a defendant has ability to pay fine

R. v. Topp, 2011 SCC 43 is a useful source for the proposition that the Crown has a burden to show that an accused can pay a fine imposed under s. 734(2) of the Criminal Code. A court may impose a fine only if satisfied, on a balance of probabilities, that the offender has the means to pay the fine. 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. Presumably the same analysis would apply to other statutes imposing fines. The Court:

[33] The Crown submits that the offender bears an onus to explain what happened to the funds because the offender is in a better position to obtain and adduce relevant evidence than the Crown. It is often impossible for the Crown to trace the proceeds of crime. In the present case, for example, the Crown lost track of the fraudulently obtained funds after tracing them to a bank account in Antigua.

[34] This submission is attractive at first glance but loses its appeal on closer scrutiny.

[35] First, the Crown is not required to identify or locate the specific assets that the offender can use to pay the fine, though direct evidence of this sort, when available to the Crown, is by its nature particularly persuasive. In its absence, the Crown may instead rely on various types of indirect evidence to satisfy the trial judge of the offender's ability to pay ? including evidence that the offender had possession of impugned funds in the relatively recent past, evidence of an ongoing lavish lifestyle, and evidence of the offender's earning potential.

[36] Second, the Crown's argument disregards the text of s. 734(2). It may be desirable from a truth-seeking perspective to place an evidentiary onus on the party that is best positioned to produce evidence. Parliament well understood that the offender is better positioned to produce evidence of his finances than the Crown. But Parliament has nonetheless explicitly chosen to require an affirmative finding that the offender is able to pay a fine, instead of requiring the offender who opposes a fine to satisfy the court that he or she is unable to pay.

[37] The Crown also argues that the interpretation of s. 734(2) should be influenced by case law relating to restitution and the common law rules regarding the imposition of fines. With respect, the cases cited by the Crown are readily distinguishable.

[38] In Johnson and Castro, the Alberta and Ontario Courts of Appeal respectively held that, in the context of a restitution order, past receipt of ill-gotten gains places a burden on the offender to explain where they have gone. Restitution, however, differs from a fine in two important respects. First, and perhaps most important, restitution orders are not subject to s. 734(2). Second, an offender who defaults on a restitution order ? unlike an offender who defaults on a fine ? is not subject to imprisonment as a consequence.