$4.7 million is a lot of money to spend; especially when none of it is legally yours to spend. John Topp either already has or someday will be doing just that. This after the Supreme Court recently dismissed the Crown’s appeal from sentence: R v Topp, 2011 SCC 43.

Topp was convicted of numerous counts of fraud in relation to the misappropriation of client’s funds that he received through a brokerage business he ran. On more than 400 separate occasions he had helped himself to portions of their funds ultimately totalling $4.7 million [paras 9 and 10].

The Crown had sought, in addition to a seven year sentence, a fine in the amount of 4.7 million. Judge Baltman declined to impose the fine. In so doing she offered the following:

There is virtually no information about what Mr. Topp did with the stolen funds; the Crown attempted to trace the funds and found that some monies had been transferred to a bank account in Antigua, but there was nothing left to recover. Mr. Topp appears to have few tangible assets, and so where the money went remains a mystery.

…As I am not persuaded the accused has the ability to pay a fine, none is imposed [para 14 SCC].

On appeal from that ruling to the Supreme Court, the sole issue was whether the trial judge erred in so holding. More precisely, the Crown argued that the judge misapplied section 734(2) and was duty bound to impose the fine in light of the respondent’s failure to explain what happened to the $4.7 million he misappropriated.

The appeal was dismissed. In doing so Fish J, on behalf of the Court, noted that section 734(2) “does not impose a formal burden on the party seeking a fine” [para 21]. Yet, Fish J acknowledged that a burden exists in the sense that the court, before imposing the fine, must be satisfied the offender can pay the fine.

On the facts of the present case, Fish J concluded as follows:

In declining to impose a fine, the trial judge in this case considered counsels’ submissions and all of the information and evidence before her. She expressly took into account Mr. Topp’s failure to explain what had happened to the money he was found beyond a reasonable doubt to have misappropriated. Nothing in the record indicates that she failed to consider anything relevant to her decision. In the end, the judge plainly declared that she was not satisfied that Mr. Topp was able to pay the fine requested by the Crown. She could reasonably have concluded otherwise, but she was not legally bound to do so [para 40]; [emphasis added].

The trial judge could have concluded otherwise, as Fish J suggests, based on the following logic offered by Fish J:

Past receipt of illegally obtained funds does not impose an evidential burden on offenders to prove they no longer possess their ill-begotten gains. In the absence of a credible explanation, however, it will often be open to the court to infer that the offender is able to pay a fine. But the court is not legally bound to do so. The probative weight of the inference will depend on the circumstances, and therefore vary from case to case [para 7].

In the present case the trial judge chose not to draw that inference; debatable perhaps, but not a reversible error.

DG Mack