Ability to Pay: S. 734(2) of the CC

 

 

Standard of Proof

 

In determining whether the record contains sufficient evidence to “satisfy” the court that the offender can afford to pay the contemplated fine, the trial judge must be satisfied, on a balance of probabilities, of the offender’s ability to pay: R v Mahmood, 2016 ONCA 75 at para 22

 

 

Ability to pay versus time to Pay 

 

An offender’s ability to pay is inextricably linked with the time an offender has to pay the fine. If an offender shows on a balance of probabilities that s/he does not have the ability to pay immediately, s/he must be given sufficient time to pay that is reasonable in all the circumstances: R v Mahmood, 2016 ONCA 75 at para 23

 

 

Fines in lieu of forfeiture and Restitution Orders

 

Trial judges may structure a fine in lieu of forfeiture and restitution order so that the restitution order takes priority over payment of the fine in lie of forfeture, which can be reduced by any amount paid toward the restitution order: R v Dhanaswar, 2016 ONCA 229 at paras 2-3

 

​For a comprehensive review of the governing principles on fines in lieu of forfeiture, including the standard of review, the statutory scheme, the test for imposing a fine in lieu of forfeiture, the relevance of rehabilitation, ability to pay, and the availability of civil remedies for a victim, as well as the relevance of general sentencing objectives, see R v Angelis, 2016 ONCA 675

 

 

For a review of the governing principles on a trial judge's discretion to refuse to order a fine in lieu of forfeiture, see also R v Rafilovich, 2017 ONCA 634

The imposition of a fine in lieu of forfeiture is not punishment imposed upon an offender. It is also not part of the global sentence imposed upon an offender and accordingly it is not to be consolidated with sentencing on a totality approach: R v Saikaley, 2017 ONCA 374 at para 181