Restitution Orders

If you have suffered losses as a result of a crime, we can assist you in obtaining a Restitution Order.

If you are charged with an offence where a Restitution Order could be made against you, we can help you to navigate this issue through the courts towards the best possible resolution.

What is a Restitution Order?

A Restitution Order is made by a criminal court for an offender to pay a victim (or victims) of crime a set amount of money which is related to the offence for which the offender has been found guilty. Restitution forms part of the sentence given to an offender.

• A restitution order requires the offender to pay the victim for financial losses the victim suffered because of the offender’s crime.
• Restitution can only be ordered for losses up to the time the offender is sentenced. It is part of an offender’s sentence and can be a stand-alone order or part of a probation order or conditional sentence.
• Restitution can only be ordered when there is an identifiable victim(individual, institution or organization). Where the loss or damage cannot be attributed to an individual or to a company, fines are the more appropriate monetary sanctionto include in a sentencing submission.
• The Court can also make a compensation award to the Province to provide a sum of money to a victim for the harm or loss related to a criminal action.

Victim’s Right to Restitution Orders

The Canadian Victims Bill of Rights came into force on July 23, 2015. This Act gives victims who are “natural persons” (not corporations or organizations) who have been victims of an alleged or proven offence in the Criminal Code, Drugs and Controlled Substances Act, Youth Criminal Justice Act, Immigration and Refugee Protection Act and Crimes Against Humanities and War Crimes Act, the following rights:

• to have a court consider making a restitution order when deciding the offender’s sentence
• the right to information about the criminal justice system and the case with which they are associated
• the right to convey their views about decisions to be made to the appropriate authorities in the criminal justice system
• the right to file such an order in a civil court
• the right to register the restitution order with a civil court and seek to enforce it as a judgement through that court

Who is Eligible?

Only natural persons have a statutory right to a remedy if a restitution order is not considered by the Crown and the Court.

In all other cases the restitution provisions of the Criminal Code apply to all Criminal Code offences and to individuals, organizations, municipalities and governments who are victims of crime. Therefore, all victims (individuals, organizations, companies) can seek restitution orders and Courts must consider restitution orders for all offences.

What Do Restitution Orders Cover?

Restitution amounts must be easy to calculate and not in great dispute. For example, two weeks’ lost wages due to injuries caused by an assault could be proved with pay stubs and absence forms (from work). The replacement costs for goods stolen or vandalized could be proved with store receipts or estimates for the replacement of the items.

A judge can order restitution to cover a victim’s full or partial financial losses related to:

• Damaged or lost property due to the crime;
• Bodily injury or psychological harm due to the crime including loss of income or support.
• Reasonable expenses for temporary housing, moving, food, childcare and transportation due to a spouse, common-law partner, child or other person moving out of the offender’s household because of harm or threat of harm from the offender
• Re-establishing a victim’s identity or correcting credit history or credit rating because of identity theft or fraud (in the case of an offence under section 402.2 or 403)
• Costs that victims of non-consensual publication of an intimate image had to pay to have that image removed from the Internet or other digital networks
• Restitution cannot be ordered for pain and suffering, emotional distress, or other types of damages that can only be assessed in civil courts
• In all cases, the amount claimed in the application for restitution must be readily ascertainable. The mere fact of a dispute of the amount or of the application for restitution does not constitute a reason to deny the application. Where there is incomplete or varying information, the necessity of complicated calculations, or a clear dispute on fundamental factual issues this may be the basis for the court to reduce or deny a restitution order.
• Restitution orders cannot include amounts for pain and suffering
• Restitution orders cannot include the legal or accounting costs related to the determination of the loss

Obligations of the Court and the Crown

The Criminal Code imposes obligations on prosecutors and Courts to assist victims in exercising their rights to request restitution.

• Crown counsel must be prepared to respond to the obligatory inquiry by the Court about whether a victim has been given the opportunity to request restitution
• where a victim has not been given such an opportunity, the Court may, on application of the prosecutor or on its own motion, adjourn sentencing to allow the victim to do so
• Defence Counsel, the Crown will work to identify the amounts of losses suffered by victims at as early a point in the prosecution as possible to ensure the Victim’s rights in this respect are dealt with properly

Factors Court will Consider

Restitution orders form part of a sentencing order.

The Courts have found that restitution orders may give effect to many of the principles of sentence: denunciation, specific and general deterrence and rehabilitation.

In deciding whether to include restitution in any submissions on sentencing, Crown counsel must be governed by the Criminal Code sections on restitution as well as sections 718, 718.1 and 718.2. These provisions were changed in 2015 to give new emphasis to the harm caused by crime to victims and to society.

In addition, to respecting the principles and objections of sentencing, Crown counsel should consider the following factors in their decision to make an application for restitution:

• the severity of the offence;
• the degree to which the offender is responsible for the loss or damage;
• the connection between the offence and the loss of the victim;
• the blameworthiness of the offender;
• the offender’s financial means or ability to pay now or at a reasonably ascertainable future date;
• whether the amount of loss is entirely or partially readily ascertainable;
• the impact of the restitution order on the offender’s rehabilitation;
• whether other sentencing options are paramount; and
• any aggravating factors, such as where a breach of trust was involved in the offence or where significant planning and deliberation were involved.

Effect of Restitution on Sentence

Generally, if a Restitution order is made and complied with then a period of incarceration may be lessened or avoided, except in the most serious cases.

The Appeal courts have clearly stated that restitution orders are only one part of an appropriate sentence. Generally, the effect of a restitution order will be to reduce the severity of other parts of the sentence.

Restitution made prior to sentencing or the willingness to enter into a restitution agreement are factors that will affect sentencing.

How is the restitution order paid?

The Court can order the offender:

• to pay restitution directly to the victim or to a public authority created for this purpose.
• to pay the restitution amount immediately, by a specified day in the order, or as part of a payment plan.
• to pay restitution to more than one victim and can assign priority among the victims on the order

Right to Pursue in Civil Court

If an offender fails to pay a restitution order by the day specified in the court order or if the offender does not comply with a payment plan, a victim can file the order in the civil court and use civil enforcement methods to collect the unpaid amount.

Documenting financial losses

It is a good idea for victims to start documenting their financial losses as soon as possible after the crime. This will help make sure they are ready to report their losses when the offender is sentenced. Some of the documents that are helpful include:

• Receipts for lost or damaged items;
• Invoices;
• Pay stubs that document lost wages;
• Absence forms from work that document lost wages;
• Bills for cost of repairs or replacements;
• Estimates for replacement items (for example, stolen or vandalized items that needed replacement or repair); or
• Any other documents that demonstrate financial loss due to the crime

Victims can use Form 34.1 (Statement on Restitution) to help document their financial losses.

Duty to Consult with Victims of Crime

After the 2015 Criminal Code amendments affecting restitution, the Criminal Code imposes several obligations:

• firstly, to consider including a restitution order in sentencing for all offences; and
• secondly, after a finding of guilty, to ask Crown counsel if reasonable steps have been taken to provide victims with an opportunity to indicate if they wish to seek restitution

Impact of Other Civil Proceedings

Whether there are existing, pending or completed civil proceedings to recover the amount of the losses, as well as to seek pecuniary damages for pain and sufferings does not preclude an application for or the granting of a restitution order.

No Double Recovery Allowed

A victim will not be permitted to collect in excess of their full losses. Thus, if they have recovered fully from a civil judgement they cannot collect the full amount from the restitution order.

Since applications or awards from provincial compensation programs could affect the quantum of a restitution order and victims have obligations to report restitution orders or receipt of restitution funds to both civil processes and to compensation programs.