Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Restitution to persons acting in good faith

739 Where an offender is convicted or discharged under section 730 of an offence and

• (a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or

• (b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,

the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.

Marginal note:Ability to pay

739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.

Marginal note:Payment under order

739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.

Marginal note:More than one person

739.3 An order under section 738 or 739 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.

Marginal note:Public authority

• 739.4 (1) On the request of a person in whose favour an order under section 738 or 739 would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.

• Marginal note:Orders

  (2) The lieutenant governor in council of a province may, by order, designate any person or body as a public authority for the purpose of subsection (1).

Marginal note:Priority to restitution

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.

Marginal note:Enforcing restitution order

• 741 (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

• Marginal note:Moneys found on offender

  (2) All or any part of an amount that is ordered to be paid under section 738 or 739 may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.

Marginal note:Notice of orders of restitution

741.1 If a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2), to the public authority and the person to whom the public authority is to remit amounts received under the order.

Marginal note:Civil remedy not affected

741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.

Conditional Sentence of Imprisonment

Marginal note:Definitions

742 In sections 742.1 to 742.7,

change

change, in relation to optional conditions, includes deletions and additions; (modification)

optional conditions

optional conditions means the conditions referred to in subsection 742.3(2); (conditions facultatives)

supervisor

supervisor means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7. (agent de surveillance)

Marginal note:Imposing of conditional sentence

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

• (a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

• (b) the offence is not an offence punishable by a minimum term of imprisonment;

• (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

• (d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

• (e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

  • (i) resulted in bodily harm,

  • (ii) involved the import, export, trafficking or production of drugs, or

  • (iii) involved the use of a weapon; and

• (f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:

  • (i) section 144 (prison breach),

  • (ii) section 264 (criminal harassment),

  • (iii) section 271 (sexual assault),

  • (iv) section 279 (kidnapping),

  • (v) section 279.02 (trafficking in persons — material benefit),

  • (vi) section 281 (abduction of person under fourteen),

  • (vii) section 333.1 (motor vehicle theft),

  • (viii) paragraph 334(a) (theft over $5000),

  • (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),

  • (x) section 349 (being unlawfully in a dwelling-house), and

  • (xi) section 435 (arson for fraudulent purpose).