INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the priority of restitution orders over forfeiture or fine orders in certain circumstances.
SECTION WORDING
740 Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739, and (a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or (b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine, the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.
EXPLANATION
Section 740 of the Criminal Code of Canada deals with the court's discretion to order restitution, forfeiture, or fine as punishment for an offender. It outlines the circumstances under which a court may make an order of restitution in relation to an offender, and its discretion to choose between forfeiture, restitution, and fine as the appropriate punishment. Subsection (a) provides that when a court is considering making an order of restitution against an offender, and an order of forfeiture is applicable under any other Act of Parliament, the court may also consider ordering the forfeiture of property linked to the same offence. This means that the court may choose to impose both restitution and forfeiture orders if the property is the same as that which the restitution would cover. Under subsection (b), when the court is considering ordering an offender to pay a fine, it must take into account the offender's ability to comply with both the restitution and the fine orders. If the court determines that the offender does not have the means or ability to comply with both orders, it must make the restitution order first and determine whether and to what extent the offender should be ordered to pay a fine. Overall, section 740 ensures that the court has the discretion to order appropriate punishments that take into account the offender's ability to comply with them. It also promotes fairness in sentencing by allowing courts to consider the financial impact of restitution or fine orders on the offender while ensuring that the victims of the crime are compensated.
COMMENTARY
Section 740 of the Criminal Code of Canada deals with the imposition of restitution orders in cases where forfeiture orders or fines may also be applicable. This section recognizes the importance of restitution in providing relief to the victim or affected parties, while also considering the ability of the offender to comply with both the order of restitution and other penalties that may be imposed. Restitution is an important aspect of criminal justice as it allows for the restoration of the victim or affected parties to the position they were in before the offence occurred. This may include compensation for damages, expenses, or losses incurred as a result of the offence. The imposition of a restitution order is an effective way to hold offenders accountable for their actions, while also allowing them to take responsibility for the harm they have caused. However, in some cases, the imposition of a restitution order may conflict with other penalties that may be imposed on the offender. For example, if an offender is also liable for forfeiture of their property or the imposition of a fine, it may be difficult for them to comply with both the order of restitution and the other penalties. In such instances, the court must consider the circumstances of the case and determine the appropriate order of penalties. Section 740 recognizes this conflict and lays out a requirement for the court to prioritize the imposition of a restitution order over other penalties. This assures that the victim or affected parties are compensated first before other penalties are imposed. The section also allows the court to determine the extent to which the offender is able to comply with both the order of restitution and other penalties. In cases where the offender is unable to comply with both, the court is required to decide the appropriate order of penalties based on the circumstances of the case. This provision of the Criminal Code of Canada recognizes the importance of considering the impact of an offender's actions on the victims or affected parties and the need for restitution in addressing the harm caused. It emphasizes the importance of holding offenders accountable for their actions and making them take responsibility for the harm they have caused. The decision-making process laid out in this section also recognizes the limitations and challenges of enforcing multiple penalties and helps guide the court towards arriving at a fair and just decision. Overall, Section 740 of the Criminal Code of Canada provides a framework for the imposition of restitution orders that considers the needs of the victim or affected parties, while also balancing the ability of the offender to comply with the order of restitution and other penalties. This section emphasizes the importance of restitution in the criminal justice process and the need to assure that victims receive compensation for the harm caused by the offender's actions.
STRATEGY
Section 740 of the Criminal Code of Canada is an important tool for courts in ensuring that victims of a crime are compensated for the harm they have suffered. It allows for the court to order an offender to make restitution to the victim before considering any other penalties, such as forfeiture or fines. One strategic consideration when dealing with this section is to ensure that the victim's needs are prioritized. Restitution should be seen as a way to make the victim whole, rather than simply as a punishment for the offender. This means that the court should carefully examine the victim's losses and order restitution accordingly. It may be necessary to consult with the victim to determine the appropriate amount of restitution, as they are in the best position to know the extent of their losses. Another strategic consideration is to ensure that the offender has the means to pay the restitution. If the offender is unable to pay, then ordering restitution may be meaningless. In some cases, it may be necessary to order the forfeiture of property in order to ensure that the victim is compensated. However, this should only be done if it is necessary and appropriate in the circumstances. A strategy that could be employed is to set up a payment plan for the offender. This can be done in cases where the offender has the means to pay, but may not be able to do so in a lump sum. By setting up a payment plan, the court can ensure that the victim receives the compensation they are entitled to, while also giving the offender a realistic framework for repaying the debt. It may also be beneficial to consider the broader impact of restitution on the criminal justice system. Restitution can be an effective way to deter future criminal behavior, as it sends a message that offenders will be held accountable for their actions. However, if restitution orders are too onerous or unrealistic, then they may not be effective in deterring future crime. Ultimately, the strategic considerations when dealing with Section 740 of the Criminal Code of Canada will depend on the specific circumstances of each case. However, it is important for the court to prioritize the needs of the victim, ensure that the offender has the means to pay, and consider the broader impact of restitution on the criminal justice system. By doing so, the court can use restitution effectively as a tool for justice and accountability.