Restitution in Canadian Criminal Cases

Restitution is when the criminal court requires a convicted criminal to pay a sum of money to his victims to compensate them for their financial losses resulting from the crime.

Restitution Order with Criminal Sentence

Restitution is ordered at the time of sentencing and is considered part of the sentence. The purpose of restitution is to provide compensation to the victim(s) and also as punishment to the accused.

In Canada, an offender to not supposed to profit from his crimes and restitution is a mechanism that helps prevent profiting from criminal acts. It is important to note that restitution is not meant to be a replacement for civil lawsuits and is to be applied in a way that shows restraint and caution (R. v. Castro, [2010] O.J. No. 4573).

Offender's Financial Ability to Pay

Unlike in a civil lawsuit proceeding, the offender's ability to pay is considered. If restitution would negatively impact an offender’s ability to rehabilitate himself, the court may not order it at all (or may order a reduced amount). Keep in mind, the victim may still sue the offender in civil court for the remainder of their losses (where ability to pay is not a factor).

Cases involving complex frauds may also not be appropriate for restitution if significant forensic accounting is required to determine the amount of the loss. In Castro, the Ontario Court of Appeal found that restitution is “not the appropriate mechanism to unravel involved commercial transactions.” The appropriate mechanism is instead a civil lawsuit.

For matters where the loss is easily determined and restitution will not severely impact the rehabilitation of the offender, restitution provides a quick and efficient means of recovery for the victim.

In cases of theft where the proceeds of the crime are readily available, a quick restitution order is extremely beneficial. Without restitution, many victims would be forced to spend thousands of dollars pursuing lengthy civil lawsuits (by which time the proceeds of the crime may have vanished anyway).

If you have been charged with fraud, theft, robbery, or any other that has resulted in your enrichment, there is a good chance restitution will be part of your sentence. Restitution orders can range from only a few dollars to millions depending on the facts of the case. Recently in R. v. Moore, 2010 ONCJ 579, the Ontario Court of Justice ordered restitution in the amount of $250,000.00. In that case, the offender had an income of approximately $100,000 per year. This is a good case to read on the current law of Restitution in Ontario.

If you have been charged with a crime where restitution is a possible outcome at sentencing, arguing against your financial ability to pay is important. Factors like your current debt, income, expenses, having medical conditions that damage your ability to pay, and the costs of supporting your family are important to highlight.

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