Facts
In this case, the SCC examined the question of whether a settlement concluded between the injured party and the perpetrator of an offence precludes the confiscation of assets obtained unlawfully.
The SCC ruled that the settlement does not preclude confiscation. Even if the injured party waives damages or restitution as part of a settlement, the criminal conduct remains an offence and the assets obtained must be confiscated. When these assets are no longer available, a compensatory claim of the State must be ordered instead.
The Court clarified that the amount of the settlement is irrelevant in determining the value to be confiscated. Only the amount actually reimbursed as part of the settlement must be deducted from the value to be confiscated.
Considerations
According to the jurisprudence of the SCC, confiscation and the State's compensatory claim are based on the idea that criminal conduct must not be profitable. Confiscation is an ancillary criminal measure that applies when the legal conditions are met, regardless of the will of the injured party.
Even if the injured party waives damages or restitution as part of a…