The Supreme Court of Canada is releasing its decision in R. v. Rafilovich on Friday, November 8, 2019. At issue is the discretion of sentencing judges to decline to impose a fine in lieu of forfeiture of proceeds of crime where the seized cash was used to pay a defence lawyer.

The appellant was arrested for possession of cocaine for the purpose of trafficking. Police seized cocaine and $40,000 in cash. The cash was return to the appellant by court order so that he could pay his defence lawyer. He later pleaded guilty to possessing cocaine for the purpose of trafficking and possessing proceeds of crime. Essentially, he admitted that the cash he had used to pay his lawyer was proceeds of crime.

The Crown can apply to have the proceeds of crime forfeited. In this case, since the appellant’s cash was no longer available, the Crown sought a fine in lieu of forfeiture. The sentencing judge declined to impose the fine because the cash had been spent on a defence lawyer. The Court of Appeal for Ontario allowed the Crown’s appeal and ordered a fine in lieu of forfeiture.

At the SCC, the appellant argued that the Court of Appeal erred (1) by limiting the sentencing judges discretion and (2) in finding that securing access to one’s right to counsel is a clear “benefit” that frustrates the legislation and jurisprudence respecting fines in lieu of forfeiture. The Crown in response argued that the Court of Appeal’s decision is consistent with principles of statutory interpretation and Parliament’s intention. The proceeds of crime provisions in Part XII.2 of the Criminal Code were enacted to ensure that crime does not pay.

The CCLA as an intervener argued that fines in lieu of forfeiture subject individuals to what are tantamount to indeterminate sentences because of the collateral consequences that arise from the inability to pay such a fine. Basically, the offender gets stuck in the system because they used seized money to retain a lawyer at a time when they were presumed innocent.

Tough one to predict. I could see the SCC dismissing the appeal on the basis that this is an issue for Parliament to address. That being said, I’m reminded of R. v. Boudreault, 2018 SCC 58 where the SCC (Côté and Rowe JJ. dissenting) had no issue overturning courts of appeal across Canada and striking down the mandatory victim surcharge. Predict the outcome of the case here.