Criminal court is not usually where people expect to get their money back. Yet a judge sentencing someone for fraud, theft or assault in Brampton can also order that person to repay the victim, sometimes for a very large amount. That is a restitution order. It is short on paper, and it can follow the person who owes it for years.
People on each side of a case tend to misunderstand it. Victims may think it will cover everything they have been through, including stress and legal fees, or that the court will collect the money for them. Accused people may believe they cannot be ordered to pay because they have no money, or that the debt disappears when the sentence ends or if they go bankrupt. None of these assumptions is quite right.
This article gives general information and is not legal advice. Your own facts will decide how these rules apply, particularly if the amount is large or disputed.
The Basic Rule
Section 738 of the Criminal Code lets a court order restitution when an offender is convicted or receives a discharge under section 730. This means restitution can be attached to a discharge, too, not only to a conviction. The Attorney General can apply for it or the judge can order it without being asked, and it is made in addition to any other part of the sentence.
Section 737.1 makes this more than an afterthought. The court must consider restitution in every case. Before imposing sentence, it must ask the prosecutor whether reasonable steps were taken to give victims a chance to say whether they are seeking it. And if a victim asks for restitution and the court does not grant it, the court must put its reasons on the record.
Restitution can also come up in different ways. It may be a stand-alone order under section 738 or 739, or it may be a term of a probation order or a conditional sentence, and the difference matters when it comes to enforcement.
What Can Be Claimed
The categories are limited and specific:
- Property. For damage, loss or destruction, the offender can be ordered to pay up to the replacement value at the date of the order, minus the value of anything returned.
- Bodily or psychological harm. The offender can be ordered to pay all pecuniary damages arising from the harm, including lost income or support.
- Household members who had to leave. If the offender’s intimate partner, child or other household member was harmed or threatened and had to move out, the offender can be ordered to pay actual and reasonable expenses for temporary housing, food, child care and transportation.
- Identity theft and identity fraud. Reasonable expenses to re-establish identity, including replacing documents and correcting a credit history and rating, can be claimed.
- Intimate images. Reasonable expenses to remove an image from the internet or another digital network can be claimed.
All of these share one limit: the amount has to be readily ascertainable. And they cover only actual financial loss. There is no provision for pain and suffering, general emotional distress, or loss of enjoyment of life. Those are civil claims.
Section 739 deals with a less obvious situation. Where someone sold stolen property to a good faith buyer, or borrowed against it from a good faith lender, and the property has been returned to its rightful owner, the court may order the offender to pay that innocent buyer or lender up to the amount they paid or lent.
“Readily Ascertainable” in Practice
This phrase does a lot of work. Restitution is meant to be a quick and practical tool, and a sentencing hearing is not a place for a civil trial. If the loss can be proven by clear paperwork, such as a repair invoice, a bank statement, or a pay stub, the court may be able to deal with it.
Where the amount is complicated or strongly disputed, it may not be suitable. A claim about a business’s lost profits over several years, or a dispute over which of many transactions was fraudulent, could be too uncertain, and a judge may decide the matter belongs in a civil court. Judges generally also pay attention to whether there are other people responsible, what share of the loss relates to the offence the person was actually found guilty of, and whether the amount has been agreed.
So the outcome depends a lot on the facts admitted or proven. An accused who pleads to a fraud “over $5,000” has not necessarily agreed to every dollar claimed. If a Crown is seeking $300,000 and the agreed facts refer to $80,000, that gap should be resolved before anyone pleads. Conversely, a person who agrees to specific figures in a statement of facts may have a hard time challenging the same amount later.
How a Victim Asks for It
Victims can say whether they are seeking restitution by completing Form 34.1 in the Criminal Code, a provincially approved form, or another method that the court approves. Your losses must be set out and supported. Practical steps:
- Tell the investigating officer, the Crown, or Victim/Witness Assistance staff at the Brampton courthouse (7755 Hurontario Street) as soon as you can that you are seeking restitution.
- Keep invoices, receipts, bank records, insurance letters, pay stubs and estimates. Organize them by date and category.
- Add up your total and show how you got there. Say whether anything was returned or recovered.
- Tell the Crown about any amount your insurer has paid, since it can affect who is owed what.
- Ask for updates on the court dates, particularly if there is a sentencing hearing coming up.
The court may adjourn sentencing to let victims indicate whether they are seeking restitution or to establish their losses, if it would not interfere with the proper administration of justice. So if you have only just learned that sentencing is near, say so quickly.
Can You Be Ordered to Pay If You Have No Money?
Yes. Section 739.1 is direct about this: the offender’s financial means or ability to pay does not prevent the court from making an order. Means can still be relevant to how a judge exercises discretion in deciding whether to order it and how much, and courts look at factors including the seriousness of the crime and whether the person benefited from it. But being broke is no shield.
Section 739.2 says that the court must require payment of the full amount by a specified day, unless it decides the amount should be paid in instalments, in which case it sets out a schedule. For people with limited incomes, that is important. Ask your lawyer to raise instalments, and bring proof of your income and expenses to the hearing. Courts cannot set a sensible plan without information. Where a person is genuinely willing to pay, doing so before sentencing can also be a mitigating factor. Repaying money early, where you are able to and have advice, can have an impact on how the Crown and the court see the case, though it does not guarantee a particular sentence.
What Happens If It Is Not Paid
Section 741 is where a stand-alone restitution order gets its teeth. If you do not pay by the date in the order, or miss an instalment, the person owed can file the order in a civil court in Canada that has jurisdiction over that amount. It can then be entered and enforced as a civil judgment. This can mean garnishing wages and bank accounts or seizing assets, and it may show up on credit.
This is mostly the victim’s job, and it is where some people are disappointed. The Crown does not usually act as a collection agency. The court must give you a copy or notice of the order, which you should keep safely. Enforcing it may require filing in the right court and using ordinary civil tools. Depending on the amount, this might mean the Small Claims Court or the Superior Court of Justice, and our page on small claims matters gives some background on that system. Money found on the offender at the time of arrest may also be directed toward restitution if ownership is not disputed.
If restitution is also a condition of probation or a conditional sentence, failing to pay can have consequences beyond the civil route. A wilful failure may lead to a further charge for breach of probation or to a hearing about the conditional sentence. Tell your lawyer or probation officer before you fall behind, and keep a record of every payment.
Restitution and a Civil Lawsuit
A restitution order does not close the door on a civil claim. Section 741.2 says a civil remedy is not affected merely because a restitution order has been made. A victim can sue for pain and suffering, punitive damages, or complicated losses that a criminal court would not address, while keeping in mind any limitation period and that no one can recover the same loss twice. Civil limitation periods continue to run during a criminal case, so a victim should not wait for the verdict before getting advice on a claim. In Ontario, the basic period is generally two years from discovery of the claim, and that applies even when a criminal case is slowly moving through the courts.
For people accused of wrongdoing, this works the other way. Agreed facts or a conviction can make it much harder to defend a later lawsuit based on the same events. Anyone thinking about a plea should also consider what happens if a former employer, partner or investor sues afterward. A settlement in a civil matter should be drafted with the criminal case in mind, and you should never make a payment that could look like an effort to convince a witness not to testify.
Bankruptcy and Your Record
Restitution can be surprisingly durable. Section 178(1)(a) of the federal Bankruptcy and Insolvency Act says a bankruptcy discharge does not release a person from a fine, penalty, restitution order or a similar order imposed by a court for an offence. Someone hoping to clear this debt through bankruptcy should get proper insolvency advice first.
Payment can also affect record suspensions. The waiting period under the Criminal Records Act generally starts only once a sentence is complete, including payment of fines, surcharges, costs and restitution. Unpaid restitution can therefore delay a person’s ability to apply. Check the Parole Board of Canada’s current rules before relying on any date. Keep every receipt, since you may need them years later to prove you paid.
An order can be suspended during an appeal, either automatically during the appeal period or by order of the court. If you are thinking of appealing, ask your lawyer right away, since deadlines to appeal are short.
If You Are Facing a Restitution Request
For the accused, the sensible approach starts well before sentencing. Ask for the claim and its supporting documents. Check whether the amount is limited to what the facts support, whether the figures match, and whether anything was already returned or paid by an insurer. Consider whether other people should share the amount. Bring evidence of your finances if instalments are needed. And consider how restitution fits with any discussion about a fraud or property case and how the Crown views any repayment you have made.
For victims, the most valuable step is to get your paperwork to the Crown early. Keep in mind that the criminal system is not designed to fully compensate you, and talk with a civil lawyer if your losses are significant. Either way, you are welcome to contact our office with questions about where you stand.