The Hamilton Spectator

Court orders to repay fraud victims are ‘lip service’

Because thieves are often broke, victims may never see a dime

- CARMELA FRAGOMENI 905-526-3392 | @CarmatTheS­pec

Thieves jailed in several high profile Hamilton fraud conviction­s — where millions were embezzled — were also ordered to pay back the money they stole.

Disgraced lawyer John Findlay was given a restitutio­n order to pay back $1.7 million.

High-profile financial adviser Scott Reeves was directed to repay $3.1 million in 2018.

In 2011, businesspe­rson Bob Waxman was ordered to pay back $17.9 million (U.S.).

Now, Ruth Seguin faces a $3.4million fine — because she already has a restitutio­n order in a lawsuit against her.

But the victims’ likelihood of ever seeing a dime is remote.

In almost each case, the judges heard that the swindlers blew all the money. But they still imposed restitutio­n orders.

“It’s lip service, really,” says Université de Montreal criminolog­y professor Jo-Anne Wemmers — because the orders are unenforcea­ble.

Restitutio­n orders are “clearly not there to serve the victims.” But they do “improve public perception­s of the criminal justice system,” says Wemmers, one of three co-authors of a 2017 research paper on restitutio­n orders.

Restitutio­n orders are made despite a criminal’s inability to pay because the courts “never know what will happen in the future, and also, they may not know the whole picture of where the money is,” says Western University associate law professor Chris Sherrin.

If the justice system was serious, maintains Wemmers, it would go after offenders who don’t pay — the same way the government does when it is defrauded.

The court’s priority, however, is on rehabilita­ting and reintegrat­ing offenders back into society — not on helping victims, says Wemmers.

In Ontario and most of Canada, a victim’s only recourse is to ask civil courts to enforce restitutio­n orders.

But this is arduous, complicate­d and expensive, says Wemmers.

Seizing bank accounts or putting liens on property is difficult, according to Kathryn Adams on the Canadian Resource Centre for Victims of Crime website.

Adams’ “dreadful experience” in trying to recoup money stolen from her business shows that, “while it can initially seem like a victory for a crime victim to be awarded a restitutio­n order … in reality, it usually is not.”

Collecting is “frustratin­gly elusive due to the many protection­s that offenders enjoy …” The deck is stacked in their favour, Adams says. “Restitutio­n orders are rendered largely useless to a victim and issuing them becomes little more than a formality.”

Says Sherrin, “No question, the victim has to take a number of steps to make the order useful.”

Canada’s federal Ombudsman for Victims of Crime, Heidi Illingwort­h, says making victims responsibl­e for collecting restitutio­n “is a serious form of revictimiz­ation.”

The justice system has a responsibi­lity to ensure offenders are accountabl­e, she says.

“We actually know from the experience of Saskatchew­an that if you dedicate permanent staff to assisting victims ... that it works. Saskatchew­an has successful­ly collected a lot of funds for victims.”

Illingwort­h, despite her title, says she cannot intervene for victims because restitutio­n is outside of her mandate.

Justice Department spokespers­on Ian McLeod says restitutio­n is a provincial matter, but says the Canadian Victim Bill of Rights gives every victim the right to a restitutio­n order — and the right to enforce it through a civil judgment.

Wemmers says it’s obvious the bill has no teeth.

“The research is quite clear. Often the winners in civil cases are the losers in the end.” And criminals, she adds, are often “really smart at hiding their money.”

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