Forfeiture or fine?

R. v. Dwyer, 2013 ONCA 34 deals with forfeiture of proceeds of crime and fines in lieu thereof. 

Section 462.37 of the Criminal Code provides for the forfeiture of the proceeds of crime where an offender is convicted of a designated offence. Fraud over $5,000 is a designated offence: s. 462.3(1). Section 462.37 also provides for a fine in lieu of forfeiture pursuant to subsection (3) if the court is satisfied that a forfeiture order should be made in respect of any property but that property or any part of it cannot be made subject to an order. Subsection (4) requires the court to impose a term of imprisonment in default of payment of the fine, the length of the term depending on the amount of the fine.

The Court makes clear that a fine can be made only where the offender has possession or control of the property in question or at least had possession of the property at some point.  Evidence of same is necessary.  The Court holds:

[24]       In my view, an order for a fine in lieu of forfeiture can be made under s. 462.37(3) only where the offender has possession or control of the property in question or at least had possession of the property at some point. This conclusion flows from the use of the phrase “any property of an offender” in s. 462.37(3) and the definition of “property” in s. 2. Such an interpretation is consistent with the objectives of s. 462.37, which are to deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds: see R. v. Appleby, 2009 NLCA 6, 242 C.C.C. (3d) 229, at paras. 26, 32-33. Those objectives would not be furthered by making orders in relation to property that was never in the possession of the offender, over which the offender never had control and from which the offender did not benefit: see also R. v. Mackenzie, [2002] O.J. No. 2512 (C.J.).

[27]       In my view, given the Crown’s failure to prove even on a balance of probabilities that the appellant had possession or control of the missing funds, I can see no basis for making the order for a fine in lieu of forfeiture except as stated above.