In R. v. Vallières, 2022 SCC 10, March 31, 2022, the accused was convicted of the offences of fraud and theft of maple syrup.  The maple syrup stolen was valued at eighteen million dollars.  The accused received ten million dollars.  The sentencing judge, pursuant to section 462.37(3) of the Criminal Code, imposed a fine of ten million dollars in lieu of an order for forfeiture of the property that was proceeds of crime.  On appeal, the Quebec Court of Appeal reduced the fine to one million dollars.  The Crown was granted leave to appeal to the Supreme Court of Canada.

The Supreme Court allowed the appeal and reinstated the fine imposed by the trial judge.

The Supreme Court noted that a fine in lieu is “first and foremost, in the nature of a forfeiture order. It has consistently been held that the forfeiture inquiry is independent of the broader inquiry undertaken with respect to sentencing and the principles related thereto…It is therefore imperative that, when calculating the amount of a fine in lieu, courts put aside the general principles of sentencing that are incompatible with the nature of this order” (at paragraph 24).  

The Court indicated that the “imposition of a fine in lieu may be considered where forfeiture of the property that is proceeds of crime has become impracticable. In such a case, a court may, instead of ordering the forfeiture of the property, order the offender to pay a fine equal to the value of the property (s. 462.37(3) Cr. C.). Although the use of the word ‘may’ indicates that Parliament intended courts to have some discretion, I am of the view that this discretion does not allow them to limit the amount of a fine in lieu to the profit made from a criminal activity, even in cases where this would be consistent with the dual objective of deprivation of proceeds and deterrence…The fine is ‘equal to the value of the property’ that is proceeds of crime…Equivalency between the amount of the fine and the value of the property is inherent in the notion of substitution” (at paragraphs 26, 27, and 30).

The Court held that as a result, “[i]t follows that the amount of the fine does not vary based on an offender’s degree of moral blameworthiness or the circumstances of the offence. Rather, the dual objective of the fine is to deprive an offender of the proceeds of their crime and to deter them from reoffending. But the objective of deterrence is not focused only on the actual offender: it also applies to potential accomplices and criminal organizations…Reducing a fine to the profit made by an offender from their criminal activities would clearly be contrary to this objective” (at paragraphs 33 and 34).

Co-Accused:

The Court noted that in this case, “several co‑accused had possession or control of the same property that constitutes proceeds of crime. More specifically, this case involves successive possession of the same property, namely the $10,000,000 that was in Mr. Vallières’s possession and under his control, only part of which he ultimately kept following a redistribution to his accomplices” (at paragraph 38).

The Court held that “courts may divide the value of property among several co‑accused in order to avoid a risk of double recovery. This risk arises where the Crown seeks to have a fine in lieu imposed on more than one offender in relation to the same proceeds of crime. At the stage of imposing a fine in lieu, one can speak only of a ‘risk’ of double recovery, for it may well be that this scenario will never materialize given the fact that some co‑accused might be unable to pay their fine within the time allotted. However, this possibility does not prevent a court from apportioning the fine between co‑accused if there is a risk of double recovery, if apportionment is requested by the offender and if the evidence allows this determination to be made…The onus is on the offender to make the request and to satisfy the court that it is appropriate to apportion the value of the property between co‑accused, since apportionment is an exception to the general principle that the amount of the fine must correspond to the value of the property that was in the offender’s possession or under their control” (at paragraphs 39 and 40).