the property consists of cash. The fact that the offender no longer has
enough money must not therefore serve as a way to avoid a fine. A fine can
be ordered only if the property cannot be forfeited or if forfeiting it is
impracticable. Moreover, s. 462.37(3)(d) is significant: a fine may be imposed
where the property has been substantially diminished in value. The purpose
of the order, to replace the property, would be thwarted if the offender could
avoid the fine simply by spending the proceeds of the crime.
 A judge cannot transform circumstances in which a fine
may be ordered instead of forfeiture into circumstances that justify not imposing a fine. Deschamps J. stated, at para. 24 (see
The list of circumstances in which the court may, inter alia, impose a fine
instead of forfeiture also illustrates the limits of the discretion. For instance,
the discretion may be exercised (a) where the property cannot, on the exer-
cise of due diligence, be located or (b) where the property has been trans-
ferred to a third party. The list does not appear to be restrictive, given the
use of the expression “in particular”, which suggests that there are other
circumstances that do not appear on the list. However, those circumstances
must be similar in nature to the ones that are expressly mentioned.
The judge could not therefore decline to impose a fine simply because the
offender is no longer in possession of the property or simply because (c) the
property is located outside Canada. Thus, the judge cannot transform
circumstances in which a fine may be ordered instead of forfeiture into circumstances that justify not imposing a fine.
 The amount of the fine is intended to be equal to the
value of the proceeds of crime it replaces: Lavigne, at para. 35.
(1) Fine in lieu of forfeiture
 There is no doubt in the present case that the accused
profited from his crime and received proceeds of crime. The fact
that he has spent that money on legal fees, and that the funds
have for that reason been transferred to a third party, is no
basis, according to the principles enunciated in Lavigne, to
refuse to impose a fine equal to the amount of proceeds of crime
that were his profits he earned from his drug trafficking.
 An example of circumstances set out in Lavigne, at para.
28, as potentially justifying the exercise of discretion to refuse
an order for a fine would be “if the offender did not profit from
the crime and if it was an isolated crime committed by an
offender acting alone”. Those circumstances are not present here.
 The possibility that a court may release some of the funds
before sentencing for reasonable living expenses, or reasonable
business and legal expenses pursuant to s. 462.34(4) if an
applicant has no other assets or means available for those purposes, is compatible with subsequently ordering a fine in lieu of