



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhanaswar, 2016 ONCA 229

DATE: 20160324

DOCKET: C59461

Tulloch, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devika Dhanaswar

Appellant

Devika Dhanaswar, in person

Gerald Chan, duty counsel

Greg Skerkowski, for the respondent

Heard: February 9, 2016

Supplementary reasons to the judgment in
R. v.
    Dhanaswar,
2016 ONCA 172, released on March 1, 2016.

ADDENDUM

[1]

Following the release of our endorsement on March 1, Crown counsel,
    supported by duty counsel for the appellant, wrote to the court and drew our
    attention to the fact that we had not addressed two issues raised by duty
    counsel and conceded by the Crown.

[2]

Those two issues concerned the trial judges order for the fine in lieu
    of forfeiture. That order provided that the appellant and her co-accused were
    jointly and severally responsible for paying the total amount of the fine.
    First, duty counsel argued that while a restitution order may be made payable
    jointly and severally, fine in lieu of forfeiture orders may not. Second, duty
    counsel asked this court to give effect to the trial Crowns request for a
    provision that any amount paid toward the fine be redirected to the victims and
    count toward the satisfaction of the restitution order.

[3]

We agree with the parties on the second issue and, for greater
    certainty, would amend the order of the trial judge to state: the restitution
    order shall take priority over payment of the fine in lieu of forfeiture
    ordered herein, and the fine in lieu of forfeiture shall be reduced by any
    amount paid pursuant to the restitution order.

[4]

We decline to exercise our jurisdiction, however, to decide the first
    issue  whether a fine in lieu of forfeiture may be ordered payable jointly and
    severally.

[5]

While an appellate court may hear and decide new issues not raised at
    trial, its discretion to do so should not be exercised routinely or lightly:
R.
    v. Guindon,
2015 SCC 41, [2015] 3 S.C.R 3, at para. 22. Before doing so,
    the court must be satisfied that the new issue raised on appeal can be fully,
    effectively and fairly addressed even though it was not raised at trial:
R.
    v. K.R.
, 2009 ONCA 156, 246 O.A.C. 96, at para. 7.

[6]

Duty counsel and the Crown urge us to adopt their joint position on the
    interpretation of a part of the proceeds of crime scheme in the
Criminal
    Code
that provides a key tool to combat terrorism and organized crime, and
    which was implemented as part of Canadas international obligations:
R. v.
    Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392.

[7]

In light of those obligations, we note that the question raised before
    us has been the subject of some controversy outside of Canada for similar
    schemes, and that the imposition of joint and several liability on fines has
    been upheld: see e.g.
United States v. Caporale
, 806 F. (2d) 1487
    (11th Cir. 1986), at pp. 1506-10.

[8]

Here, this issue was raised for the first time in oral submissions at
    the appeal hearing. It was not contested at trial. In fact, the defence relied
    on the joint and several nature of the fine to argue for a longer period of
    time in which to pay it. Because the Crown is now conceding an issue that was
    not raised at trial, we do not have the benefit of any arguments whatsoever
    that explore whether Parliament intended that such orders could be made jointly
    and severally. Nor have the parties provided us with any evidence of
    legislative intent.

[9]

Instead they have asked us to rely on one authority for our decision 
    Durno J.s unreported decision in
R. v. Piccinini
(5 March 2013)
,
Milton CR-12-077-0000 (Ont. S.C.)  which, though thorough and thoughtful, is
    not conclusive of the matter.



[10]

In
    this case, we are not prepared to decide this controversial issue in the midst
    of an adversarial void and evidentiary vacuum.

[11]

Accordingly,
    the order is amended to provide that any amounts paid toward the fine are to be
    directed towards the victims and count towards satisfaction of the restitution
    order. The sentence and conviction appeals are otherwise dismissed.

M. Tulloch J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


