Case information

Criminal law - Sentencing - Fine in lieu - Whether Quebec Court of Appeal erred in law in determining and applying proper legal framework for calculating fine in lieu of forfeiture of proceeds of crime - Whether Court of Appeal erred in law by failing to allow parties to be heard regarding change to quantum of fine in lieu even though Mr. Vallières had not raised this issue in his appeal - Criminal Code, R.S.C. 1985, c. C 46, s. 462.37.

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In 2016, the respondent, Mr. Vallières, was convicted by a jury of offences relating to fraud, trafficking and theft of maple syrup from the Fédération des producteurs acéricoles du Québec. The proceeding that led to this appeal concerned the sentencing for those offences.

The Superior Court was of the view that the various criteria applicable to fines in lieu, established both by the Criminal Code and by the case law, were met in this case. As a result, it found that it had no choice but to impose a fine in lieu, given that the stolen property could not be recovered. With regard to determining the value of the property (s. 462.37(3) of the Criminal Code), it noted that judicial discretion was limited and that the amount of the fine had to be equal to the value of the property the accused had in his possession or under his control. It held that the evidence in this case showed beyond a reasonable doubt that Mr. Vallières had received $10,000,000 from the theft, and it therefore found that it had no choice but to order the payment of a fine of $9,393,498 ($10,000,000 minus US$606,501 claimed under the restraint order, which was not in issue).

The Court of Appeal unanimously allowed the appeal on this point. In its view, the amount of the fine in lieu — $10,000,000 minus the amount of the restitution order — seemed exorbitant. It found that the proper approach was the one taken by the Ontario Court of Appeal in Dieckmann (2017 ONCA 575): where there is sufficient evidence, a court may exercise its discretion to set a fine that reflects the profit the offender received from the criminal activity, provided that the dual objectives of depriving offenders of the proceeds of crime and deterring criminal organizations and accomplices are met. It found that the trial judge had erred in stating that he had no choice but to order the payment of $9,393,498.44 and that this error in principle had led to the imposition of a fine that was demonstrably unfit and was a substantial and marked departure from the fine imposed on the other co-accused who had the stolen syrup in their possession. The Court of Appeal held that the fine in lieu should be $1,000,000 minus the amount of the restitution order (US$606,501) based on the foreign currency conversion suggested by the Crown, for a total of $171,397.57.