There are a number of non-exhaustive factors that a court must consider in exercising its discretion to impose a restitution/compensation order. They include:
* An order for compensation should be made with restraint and caution.
* The concept of compensation is essential to the sentencing process as it :
1. emphasizes the sanction imposed upon the offender;
2. makes the accused responsible for making restitution to the victim;
3. prevents the accused from profiting from crime; and
4. potentially provides a convenient, rapid and inexpensive means of recovery for the victim.
*A sentencing judge should also consider:
@ the purpose of the aggrieved person in invoking s.725(1);
@ whether civil proceedings have been initiated and are being pursued and the means of the offender.
* A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims;
* A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
*A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation;
* A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
* Any serious contest on legal or factual issues should signal a denial of recourse to an order;
* Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered;
* A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy. *
William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.