Tuesday, July 14, 2015

Restitution in Criminal Law

Restitution in the criminal law comes in two forms.  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.

Informal restitution is often part of a resolution arrangement in property offences where the prosecution is stayed or otherwise lessened if restitution is paid before the case gets to trial.

Formal restitution is set out in sections 738 to 741.2 of the Criminal Code.

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 standalone restitution order.  A stand alone restitution order has no time limit for repayment and may be registered as a civil judgment which in turn could be used to garnish wages and seize property.

In granting restitution the Court must consider "totality" of the sentence. The offender should have some ability to pay the amount, either at sentencing or in the future. The court must take into consideration the offender's ability to pay. 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 likelihood of repayment.

A compensation order should not be used as a substitute for civil proceedings and should not be ordered when the amount is unclear.  Similarly, a compensation order is not the appropriate mechanism to unravel involved commercial transactions or where 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.


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