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Enforcing a criminal restitution order

Region: Ontario Answer # 1529

What is restitution?

Restitution orders are orders made in Criminal Court for the fraudster to return the assets taken from the victim. Restitution orders are made in addition to another sentence imposed, such as probation.

Restitution orders under the Criminal Code may be:

  • stand-alone orders imposed as an additional sentence (s. 738), or
  • ordered as a condition of probation (s. 732.1), or
  • a condition of a conditional sentence (s. 742.3).

When making a restitution order, the sentencing judge will consider the principles behind sentencing along with the facts of the individual case.

Restitution vs. compensation

Restitution is different from compensation. While restitution is based on the return of the assets taken, compensation is ordered to compensate the victim for losses (both pecuniary and non-pecuniary) they have sustained due to the fraud. Pecuniary losses are losses that can be measured in financial terms, such as medical costs and lost wages, while non-pecuniary losses refers to losses such as emotional pain and suffering, impairment of relationships, or a loss of mental abilities.

When is a restitution order made?

Problems with getting a restitution order in criminal trials include:

  • the reluctance of judges or Crown attorneys to order or request it,
  • that the victim does not know what restitution is, or that they have this option,
  • the application is time-consuming and difficult to complete, and
  • the eligibility requirments are restrictive.

The Supreme Court has stated that restitution orders are only appropriate when the amount of the loss is:

  • easy to calculate, and
  • not greatly disputed.

In deciding whether to make a restitution order, and in what amount, the courts will also consider many factors, such as:

  1. The assessment and awarding of damages for pain and suffering must be settled in Civil Courts, not Criminal Courts;
  2. The judge will consider the fraudster’s ability to pay a restitution order. If restitution is ordered as part of probation, the Court must be sure that the fraudster can reasonably make the payment during the term of probation because non-payment will result in a breach of the probation order;
  3. The victim must collect payment through civil enforcement procedures if the fraudster does not pay the full amount of the restitution order;
  4. The judge must consider how a restitution order will both positively and negatively impact the fraudster’s chances of rehabilitation; and
  5. The amount of restitution cannot be so large, and the time limit within which the fraudster has to pay cannot be so short, that it discourages or makes it impossible for the fraudster to pay the restitution.

Restitution amount

Most restitution orders are usually for much less than the full amount of the loss suffered by the victim. In addition, a restitution order will not include damages for pain and suffering, or punitive damages.

Enforcing restitution orders through the civil courts

Although restitution orders are made in the Criminal Court, they are enforceable using civil enforcement methods. The victim must gather information about the fraudster to be used when the restitution order is registered as a civil judgment.

For more information, refer to topic #1528 Enforcing a judgment for fraud.

To discuss a strategy for collecting on your judgment, contact a fraud recovery expert for advice.




								

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