Yulik Rafilovich v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)


Criminal law - Sentencing - Criminal law - Sentencing - Fine in lieu of forfeiture - Whether a fine in lieu of forfeiture should be imposed in respect of proceeds of crime seized by the police but returned by order of the court to the accused to pay for defence counsel - Whether to interfere with sentencing judge’s discretion regarding whether to order a fine in lieu of forfeiture - Whether payment of legal fees from proceeds of crime was a benefit frustrating legislation respecting fines in lieu of forfeiture?.


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Mr. Rafilovich was charged with multiple offences. When executing search warrants in relation to the offences, the police seized $41,130.51 (Cdn) and $651 (US). Mr. Rafilovich had no monies available for legal fees and did not qualify for legal aid. He applied pursuant to s. 462.34(4) of the Criminal Code, R.S.C. 1985, c. C-46, to be permitted to utilize the seized funds to meet reasonable legal expenses. On October 26, 2009, Macdonald J. of the Superior Court of Justice granted the application and ordered all seized funds to be released to defence counsel to meet Mr. Rafilovich’s legal expenses. Mr. Rafilovich pleaded guilty to five charges. The seized funds were determined to be proceeds of crime. At the sentencing hearing, Crown counsel in part requested an order imposing a fine in lieu of forfeiture of $41,976.39 (Cdn). The sentencing judge decided not grant a fine in lieu of forfeiture. Crown counsel appealed. The Court of Appeal allowed the appeal and ordered a fine in lieu of forfeiture in the amount of $41,976.39.