Section 737.1(1) of the Criminal Code requires sentencing judges to consider making a restitution order under section 738 and 739 of the Code when convicting or discharging an individual of a criminal offence.
What is a Restitution Order?
A restitution order is an order made by a sentencing court directing the offender to pay a sum of money to the victim(s) in the case. Section 737.1(1) of the Code requires judges to consider making a restitution order at the time of sentencing.
Pursuant to section 738(1) of the Criminal Code, the court may impose a restitution order on an offender, requiring them to pay a sum of money to the victim(s) of their offence.
Person A defrauds person B out of $1,000.00. At sentencing, person A may be ordered to pay restitution to person B in the amount of $1,000.00.
Pursuant to section 739 of the Code, the court may also order an offender who has been convicted or discharged of offence to pay restitution to an individual acting in good faith who was not a direct victim of the offence.
Person A purchased a stolen item from a thief (person B), genuinely believing the sale to be legitimate. Person A was acting in good faith. If, after arresting person B for theft, the stolen property is seized from person A and returned to the rightful owner, person B could be ordered to pay restitution to person A for the amount person A paid for the stolen item.
When will Restitution be Ordered?
Pursuant to section 737.1(2) of the Criminal Code, after a finding of guilt but before imposing sentencing, the court has a duty to inquire with the Crown regarding whether they have inquired with the victim(s) regarding whether restitution is being sought. If the victim(s) do seek restitution, the Crown will communicate this to the court, along with the amount of restitution being sought. The amount of restitution sought must be communicated to the court for the order to be made. The amount sought must also be reasonable.
An offender may be ordered to pay restitution in five different situations:
(a) Property Damage
An offender may be required to pay the replacement value of any property lost, damaged, destroyed or used as security for a loan as a result of the offender’s criminal offence, or as a result of their arrest or attempted arrest.
Person A robs person B. Police attend person A’s home to arrest him for the robbery. While being loaded into the police car, person A kicks out the window of a person C’s car, which is parked next to the police cruiser. Person A’s property is never recovered.
At sentencing, person A could be ordered to pay restitution to person B for the replacement value of the property stolen. Person A could also be ordered to pay restitution to person C for the damage to their car window.
(b) Psychological or Bodily Harm
An offender who causes psychological damage or bodily harm to their victim through the commission of their offence of during their arrest or attempted arrest may be ordered to pay restitution to the victim(s). The amount paid is not to exceed the pecuniary damages incurred as a result of the offender’s actions. This includes loss of wages and loss of income and/or support.
(c) Domestic Psychological or Bodily Harm
An offender who causes psychological damage or bodily harm to their intimate partner, child, or another individual within their household, through the commission of their offence of during their arrest or attempted arrest may be ordered to pay restitution to that individual.
The amount paid is not to exceed the actual, reasonable costs of the victim(s) having to move out of the offender’s household. This would include costs related to temporary housing, food, transportation, and childcare. The amount paid under this section is independent and additional to any amount ordered under subsections (a) and (b).
(d) Identity Theft
An offender who has been convicted or discharged of an identity theft offence may be ordered to pay restitution for the cost to the victim of re-establishing their identity. This could include the cost of replacing documents and correcting credit ratings and credit history.
(e) Removal of Intimate Images
An offender who has been convicted or discharged of publication, etc., of an intimate image without consent (revenge porn) may be ordered to pay the victim for the cost of having the intimate images scrubbed from the internet.
As outlined in section 737.1(5) of the Code, if restitution is sought by a victim and the court declines to make the order, they must provide reasons for not doing so.
How long will a Restitution Order remain Active?
When a restitution order is made, the sentencing judge will stipulate how long the offender will have to pay. In some circumstances, the offender may be asked to pay right away, or they may be given time and pay the amount in installments. If the court orders the amount be paid in installments, they will set out a payment plan for the offender.
What happens if you Breach a Restitution Order?
Section 739.1 of the Criminal Code states that the offender’s ability to pay the amount of restitution should not factor into whether or not the order should be made. The court can make an order for restitution even if it is unlikely that the offender will be able to pay the amount.
An offender who fails to pay the amount listed in their restitution order in full may be sued in civil court. The victim is required to file the order with a civil court with jurisdiction over the matter. The civil court will then enter a judgement against the accused for the amount of restitution outstanding. That judgement will be enforceable as a civil court order.