R. v Kelly, 2018 NSCA 24

La Cour d’appel de la Nouvelle-Écosse rappelle l’importance des ordonnances de dédommagement dans le processus de détermination de la peine. Toutefois, la décision discrétionnaire d’un juge d’accorder une telle ordonnance doit répondre à des critères bien établis :

[29]         As traced by Chief Justice Laskin in R. v. Zelensky, supra, the discretion to order compensation as part of the sentencing process has been in the Criminal Code since its inception.  A stand-alone restitution order fulfills a number of purposes.  It serves as a vehicle, in appropriate circumstances, to acknowledge the loss caused by the commission of the offence.  The order survives bankruptcy so that the offender, as much as the law can do, will not be able to personally benefit from the commission of the offence.  People who may be tempted to commit an offence will know, crime does not pay.  The victim will be saved the additional expense of being forced to pursue a remedy in the civil courts for the loss they suffered.

[30]         Labrosse J.A., for the Court in R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 121 O.A.C. 265 consolidated the relevant factors that should guide a court’s discretion in relation to a restitution order:

[26]  In Zelensky, Laskin C.J. identified certain objectives and factors that relate to the application of s. 725(1). These considerations have been expanded upon in subsequent cases. Below, I have consolidated these objectives and factors, all of which are relevant to the issue of what constitutes a proper exercise of discretion for the purpose of s. 725(1).

1.  An order for compensation should be made with restraint and caution.

2.  The concept of compensation is essential to the sentencing process:

(i)  it emphasizes the sanction imposed upon the offender;

(ii)  it makes the accused responsible for making restitution to the victim;

(iii)  it prevents the accused from profiting from crime; and

(iv)  it provides a convenient, rapid and inexpensive means of recovery for the victim.

3.  A sentencing judge should consider:

(i)  the purpose of the aggrieved person in invoking s. 725(1);

(ii)  whether civil proceedings have been initiated and are being pursued; and

(iii)  the means of the offender.

4.  A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.

5.  A compensation order is not the appropriate mechanism to unravel involved commercial transactions.

6.  A compensation order should not be granted when 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.

7.  A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made.

8.  Any serious contest on legal or factual issues should signal a denial of recourse to an order.

9.  Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered.

10.  A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.

[31]         Labrosse J.A. observed that the considerations he identified were not exhaustive, nor were any one of them determinative.  Much would depend on the circumstances of each case:

[27]  It is in light of these considerations that an exercise of discretion under s. 725(1) must be assessed. None of these considerations by themselves are determinative of whether a compensation order should be granted. The weight to be given to individual considerations will depend on the circumstances of each case. Nor is the preceding list intended to be exhaustive. Indeed, other relevant considerations may arise in future cases.

[32]         These principles have been consistently applied (see for example: R. v. Nanos, 2013 BCCA 339 (CanLII); R. v. Fast-Carlson, 2015 SKCA 86; R. v. Biegus (1999), 1999 CanLII 3815 (ON CA), 127 O.A.C. 239; R. v. Castro, 2010 ONCA 718 (CanLII)).

[33]         Like many aspects of sentence, the circumstances of the offence and of the offender can engage conflicting principles when it comes to restitution orders.  Relevant to this case was the acknowledged minimal capacity of Ms. Kelly to be able to pay the requested restitution order.

[34]         Ms. Kelly was 52 years of age.  She had no job and was experiencing health issues.  She had just recently started running a small B&B, which had yet to break even.  She had significant debt with no ability to raise further funds.

[35]         It is well accepted that if an offender has no present or realistic foreseeable ability to pay a stand-alone restitution order, making such an order may interfere with the offender’s rehabilitation, justifying its refusal or reduction from the full amount of the loss (R. v. Siemens (1999), 1999 CanLII 18651 (MB CA), 138 Man.R. (2d) 90 (C.A.); R. v. Spellacy (1995), 1995 CanLII 9898 (NL CA), 131 Nfld. & P.E.I.R. 127 (Nfld. C.A.); R. v. Ali (1997), 1997 CanLII 2655 (BC CA), 98 B.C.A.C. 239; R. v. Popert, 2010 ONCA 89 (CanLII); R. v. Fast-Carlson, supra).


[52]         The judge properly observed that a restitution order is not simply an ancillary order, but forms part of the sentence and must be included when considering the totality of the sentence.  However, with respect to the role that ability to pay plays, she asserted that it was not determinative and paramount consideration should be given to the victims of fraudulent transactions.  She said this:

[28]  The ability of the accused to pay, and even the future ability to pay is not the determinative factor in whether restitution is ordered by the court, and paramount consideration should be given to the victims of fraudulent transactions, see R. v. Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 S.C.R. 1005, also R. v. Yates (2002), 2002 BCCA 583 (CanLII), 169 C.C.C. (3d) 506 (B.C.C.A.).  Section 739.1 of the Codealso states that “the offender’s financial means of ability to pay does not prevent the court from making an order under section 738 or 739”.

[53]         There are certainly some circumstances where patent inability to pay may not deflect a restitution order.  Cases where monies or property have been obtained by an offender in breach of trust stand out (see: R. v. Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 S.C.R. 1005; R. v. Scherer (1984), 5 O.A.C. 297 (leave to appeal to S.C.C. refused, [1984] S.C.C.A. No. 29), both where lawyers committed egregious breaches of trust).  As well as where monies have been taken and cannot be accounted for.

[54]         The decision of the British Columbia Court of Appeal in Yates, cited by the trial judge above, was not a breach of trust case.  The offender committed welfare fraud.  The trial judge imposed a restitution order on an offender who had substantial equity in her home.  The Court of Appeal upheld the order on the basis of deference.

[55]         Other than referring to the general concept of Ms. Kelly’s doubtful ability to pay as a factor, the trial judge made no further comment on it.  She dismissed it as unimportant, because of the paramount consideration for the victim of the fraudulent transactions.  With respect, the failure to appropriately consider the offender’s patent inability to pay such a restitution order reflects legal error.