Case information

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The Respondent pleaded guilty to two counts brought against him under s. 465 (conspiracy to produce cannabis, possess cannabis for the purpose of trafficking, traffic cannabis and possess proceeds of crime) and s. 467.12 (commission of an offence for the benefit of or at the direction of a criminal organization) of the Criminal Code.

At the sentencing hearing, Marchand J. of the Court of Quebec had to consider the application of s. 462.37 of the Criminal Code, which provides for the forfeiture of the proceeds of crime at sentencing. Marchand J. was convinced that the Respondent had received an amount of $150,000 and that this amount constituted proceeds of crime obtained in relation to the offence to which he had pleaded guilty. Since the evidence did not show that the Respondent still had this money, the Crown asked the judge to impose a fine of $150,000 under s. 462.37(3) instead of issuing an order of forfeiture pursuant to s. 462.37(1).

On October 27, 2003, Marchand J. sentenced the Respondent to 5 months’ imprisonment on the first count and 14 months’ imprisonment on the second, to be served consecutively with the 5-month sentence. Taking the Respondent’s ability to pay into account, Marchand J. sentenced him to pay a compensatory fine of $20,000. In default of payment, the Respondent would be sentenced to a term of imprisonment of 10 months, to be served consecutively with the other terms.

The Appellant appealed on the grounds that the trial judge had erred in taking into account the Respondent’s ability to pay, that s. 462.37 of the Criminal Code did not confer any discretion, and that a fine of $150,000 should have been imposed. The Court of Appeal dismissed the Appellant’s appeal.