This week on Legally Speaking with Michael Mulligan:
The Criminal Code permits judges to make orders for the forfeiture of the proceeds of crime. When the proceeds of crime are not readily accessible because they cannot be located, have been transferred to a third party, are outside of Canada, or for various other reasons, a judge can order a “fine in an amount equal to the value of the property”.
Where such a fine is not paid, a judge can set a default period in jail.
In the case discussed on the show, a man was convicted of stealing a very large amount of maple syrup from a warehouse in Quebec. Barrels of maple syrup were removed, the syrup extracted, and the barrels returned full of water.
The man sold the stolen syrup for $10 million. Later he paid people who helped with the theft $9 million, leaving him with $1 million.
The legal issue in the case, which ended up in the Supreme Court of Canada, was how much the fine should be. The trial judge, and ultimately the Supreme Court of Canada, concluded that the fine must be in the full amount the man received for the stolen syrup: $10 million. Because of how the section was worded, the fine must be the full amount of the value of the proceeds of crime the man had before paying the people who helped with the theft.
There can only be a reduction in the amount of the fine where other offenders were ordered to pay back a portion of it, or where there was a separate order to repay the money.
As a result, in addition to an 8-year jail sentence, if the man doesn’t pay the $10 million fine within 10 years, he will be subject to an additional 6 years in jail.
Also, on the show, a Supreme Court of Canada case involving elections with respect to trials is discussed.
When someone is charged with a serious offence, by indictment, they have a choice about what kind of trial they wish to have: Provincial Court, Supreme Court, or Supreme Court with a jury. This choice is a significant one and should be made by the accused person, with advice from a lawyer.
In the case discussed, the lawyer for the accused was alleged to have made the election without express instructions from the accused person. Following a conviction at trial, the accused person appealed arguing that he wasn’t permitted to choose what kind of trial he would have.
Ultimately, the Supreme Court of Canada concluded that while the man should have made the decision himself, he didn’t suggest his choice would have been any different from that made by his lawyer at trial. As a result, there was no prejudice to him, and he will not be permitted to have another trial.
Another case discussed on the show involved a claim arising from a woman in BC who suffered a serious blood clot after she used a contraceptive patch.
The manufacturer of the patch, that the woman was suing, argued that her claim shouldn’t be allowed to proceed because she didn’t claim that she read the warnings in the package the patch came in, or that she wouldn’t have used the patch had the warnings included more information about the risks.
When it’s shown that a person would have proceeded with medical treatment, even if they had been told about risks that they weren’t advised of, they may not have a case even if the risk materializes.
In the case discussed, the BC Court of Appeal allowed the claim to proceed on the basis that it would be an issue at trial with respect to what risks should have been included with the patch and that it would not be helpful for the woman to make a self-serving claim that she wouldn’t have used the patch had she been told about a higher risk of a blood clot.
Follow this link for a transcript of the show and links to the cases discussed.